gerald singleton, state bar no. 208783 560 n. coast … · 2014-05-16 · ... hon. william q. hayes...

Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint i

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GERALD SINGLETON, State Bar No. 208783 ERIKA VASQUEZ, State Bar No. 268205 SINGLETON LAW FIRM, APC 560 N. Coast Hwy 101, Suite 4A Encinitas, California 92024 Tel: (760) 697-1330 Fax: (760) 697-1329 Email: [email protected]

ROBERT C. HILLIARD, TX State Bar No. 09677700 MARION REILLY, TX State Bar No. 24079195 HILLIARD MUNOZ GONZALES, LLP 719 S. Shoreline Blvd, Ste. 500 Corpus Christi, Texas 78260 Tel: (361) 882-1612 Emails: [email protected] [email protected] STEVE SHADOWEN, PA State Bar No. 41953 HILLIARD & SHADOWEN, LLC 39 W. Main Street Mechanicsburg, Pennsylvania 17055 Tel: (855) 344-3298 Email: [email protected] DANIEL GONZALES, TX State Bar No. 24068145 HILLIARD & SHADOWEN, LLC 106 E. 6th Street, Suite 900 Austin, Texas 78701 Tel: (855) 344-3298 Email: [email protected]

Case 3:13-cv-01417-WQH-BGS Document 32 Filed 03/27/14 of 37

Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint ii

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MARIA DEL SOCORRO QUINTERO PEREZ, CY, a Minor, And BY, a Minor, Plaintiffs,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 13cv14170WQH (BGS)

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO THE INDIVIDUAL CAPACITY DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT CTRM: 14B (Annex)

JUDGE: Hon. William Q. Hayes

v. UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES 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 1 - 50 Defendants.


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint iii

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TABLE OF CONTENTS

PAGE TABLE OF CONTENTS ....................................................................................... ii TABLE OF AUTHORITIES ................................................................................. iv INTRODUCTION .................................................................................................. 1 STATEMENT OF THE FACTS ............................................................................. 2 ARGUMENT .......................................................................................................... 4

I. PLAINTIFFS MET THE IQBAL “PERSONAL PARTICIPATION”

STANDARD BY PLAUSIBLY ALLEGING THAT THE SUPERVISORS

HAD KNOWLEDGE OF, AND ACQUIESCED IN, THE UNLAWFUL

POLICY ................................................................................................ 4

A. “Knowledge and Acquiescence” Is Still the Governing Standard Post-Iqbal .................................................................. 4

B. The Complaint Alleges Facts from Which Each

Supervisor’s Knowledge and Acquiescence Can Be Reasonably Inferred ................................................................. 6

1. The Supervisor Defendants tolerated and endorsed

a policy of treating rock-throwing as per se lethal force to which agents could respond with fatal gunfire ............................................................................ 7

2. The Complaint alleges that Defendant Napolitano

had specific notice from the Government of Mexico ........................................................................................ 9


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint iv

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3. The Complaint alleges that Defendant Fisher had specific notice of, and responsibility for, the Rocking Policy ............................................................... 9

4. The Complaint plausibly alleges that each

Supervisor Defendant had knowledge of and acquiesced in the unlawful policy because it was open and notorious ...................................................... 10

II. THE COMPLAINT PLEADS SUFFICIENT ALLEGATIONS TO CONFER

PERSONAL JURISDICTION OVER DEFENDANTS WINKOWSKI, AGUILAR, AND MCALEENAN ............................................................. 12

A. The Legal Standard ................................................................ 12

B. The Court has General Personal Jurisdiction Over

Defendants Aguilar, Winkowski, and McAleenan ................ 13

C. The Court has Specific Personal Jurisdiction Over Defendants Aguilar, Winkowski, and McAleenan ................ 14

D. In the Alternative, the Court Should Grant Jurisdictional

Discovery ............................................................................... 16

III. THE FOURTH AMENDMENT REMEDY IS NOT EXCLUSIVE TO THE

EXTENT THAT AGENT DIAZ WAS NOT ARRESTING OR DETAINING

MR. YAÑEZ ........................................................................................ 16

A. The Fourth Amendment Is Not Exclusive Because the Complaint Alleges that the Agents Were Not Attempting to Detain or Arrest Mr. Yañez ............................................... 17


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint v

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B. The Fourth Amendment Is Not Exclusive Because the Complaint Alleges that Mr. Yañez Was Not a U.S. Citizen .................................................................................... 19

IV. THE INDIVIDUAL-CAPACITY DEFENDANTS ARE NOT ENTITLED

TO QUALIFIED IMMUNITY ON PLAINTIFFS’ EQUAL PROTECTION

CLAIM ................................................................................................. 20

V. THE COMPLAINT PLAUSIBLY ALLEGES DEFENDANT NELSON’S

LIABILITY ............................................................................................ 21

VI. THE COMPLAINT PROPERLY STATE A CLAIM FOR ATTORNEYS’

FEES ................................................................................................... 25 CONCLUSION ..................................................................................................... 25 APPENDICES: APPENDIX 1: DECLARATION OF MARION M. REILLY, WITH THE FOLLOWING

EXHIBITS: EXHIBIT A: Plaintiffs’ First Amended Complaint EXHIBIT B: LexisNexis Report on Kevin K. McAleenan EXHIBIT C: California State Bar Attorney Search Result EXHIBIT D: LexisNexis Address Report on Kevin K. McAleenan EXHIBIT E: Kevin McAleenan Biography Listing His Practice of Law in

California EXHIBIT F: Memorandum for David V. Aguilar Re: Work Authorization


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint vi

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& California State Financial Aid for Undocumented Students EXHIBIT G: California Capitol Hill Bulletin EXHIBIT H: Martinez, Angela, Border Patrol Agent Robert Rosas Laid to

Rest, July 31, 2009 EXHIBIT I: Border Patrol Agent Robert Rosas Laid to Rest, Aug. 3, 2009 EXHIBIT J: Article Re: Aguilar as Keynote Speaker for West Coast Trade

Symposium in Long Beach, California EXHIBIT K: CBP Biography of Thomas S. Winkowski EXHIBIT L: FTC Tradewatch 2011 Conference featuring Winkowski as

Keynote Speaker EXHIBIT M: Maritime Security Info Convention featuring Winkowski as

Keynote Speaker EXHIBIT N: NCBFAA Customs Committee Draft Meeting Agenda EXHIBIT O: AAEI Conferences and Events with Winkowski as Keynote

Speaker EXHIBIT P: U.S. Custom and Border Protection Memorandum Re: Use of

Safe Tactics and Techniques, Mar. 7, 2014, https://www.documentcloud.org/documents/1061527-border-patrol-use-of-force-directive.html

EXHIBIT Q: Laura Carlsen, Lethal Force on the Border, Huffington Post,

June 18, 2010, http://www.huffingtonpost.com/laura-carlsen/lethal-force-on-the-borde_b_617065.html


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint vii

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TABLE OF AUTHORITIES PAGE

UNITED STATES SUPREME COURT CASES Ashcroft v. Iqbal,

556 U.S. 662 (2009) ............................................................................ passim

Chavez v. Martinez, 538 U.S. 760 (2003) ................................................................................... 17

Dunlop v. Munroe,

7 Cranch 242 (1812) ..................................................................................... 5

Garner v. Tennessee, 471 U.S. 1 (1985) ....................................................................................... 17

Graham v. Connor,

490 U.S. 386 (1989) ............................................................................ passim Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408 (1984) ................................................................................... 14

Herring v. U.S., 555 U.S. 135 (2009) ..................................................................................... 4

Int’l Shoe v. Washington, 326 U.S. 310 (1945) ................................................................................... 12

Pers. Adm’r of Mass. v. Freeney,

442 U.S. 256 (1979) ..................................................................................... 4 Pinkerton v. United States,

328 U.S. 640 (1946) ................................................................................... 21


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint viii

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Tellabs, Inc. v. Makor Issues & Rights, Ltd., 552 U.S. 308 (2007) ..................................................................................... 9

FEDERAL CIRCUIT COURT CASES Al-Kidd v. Ashcroft,

580 F.3d 949 (9th Cir. 2009) ........................................................................ 6

Ammons v. Wa. Dept. of Social & Health Servs., 648 F.3d 1020 (9th Cir. 2011) ...................................................................... 5

Bancroft & Masters, Inc. v. Augusta Nat’l Inc.,

223 F.3d 1082 (9th Cir. 2000) .................................................................... 12 Beltz Travel Serv., Inc. v. Int'l Air Transp. Ass'n,

620 F.2d 1360 (9th Cir. 1980) .................................................................... 21 Bielevicz v. Dubinon,

915 F.2d 845 (3d Cir. 1990) ......................................................................... 6 Billington v. Smith,

292 F.3d 1177 (9th Cir. 2002) .................................................................... 23 Blantz v. Cal. Dept. of Corrections and Rehab.,

727 F.3d 917 (9th Cir. 2013) ...................................................................... 11 Boschetto v. Hansing,

539 F.3d 1011 (9th Cir. 2008) .................................................................... 13

Chavez v. U.S., 683 F.3d 1102 (9th Cir. 2012) ................................................................ 6, 11


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint ix

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Cnty of Sacramento v. Lewis, 523 U.S. 833 (1998) ................................................................................... 18

Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) .................................................................... 5

Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co.,

284 F.3d 1114 (9th Cir. 2002) .................................................................... 12 Harris v. Roderick,

126 F.3d 1189 (9th Cir. 1997) .................................................................... 23

Hayden v. Cnty. of Nassau, 180 F.3d 42 (2d Cir. 1999) ......................................................................... 20

Hill v. Pugh,

75 F. App’x 715 (10th Cir. 2003) ................................................................ 16 Hydrick v. Hunter,

669 F.3d 937 (9th Cir. 2012) ...................................................................... 11

Martinez-Aguero v. Gonzales, 459 F.3d 618 (5th Cir. 2006) ...................................................................... 19

Martinez-Rivera v. Ramos,

498 F.3d 3 (1st Cir. 2007) .......................................................................... 18

Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283 (9th Cir. 1999) .................................................................... 21

Menotti v. City of Seattle,

409 F.3d 1113 (9th Cir. 2005) ..................................................................... 10


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint x

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Moss v. U.S. Secret Serv., 711 F.3d 941 (9th Cir. 2013) ........................................................................ 6

Nurse v. United States,

226 F.3d 996 (9th Cir. 2000) ................................................................ 24, 25 OSU Student Alliance v. Ray,

699 F.3d 1053 (9th Cir. 2012) ...................................................................... 5

Petta v. Rivera, 143 F.3d 895 (5th Cir. 1998) ...................................................................... 18

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) ...................................................................... 12

Sher v. Johnson, 911 F.2d 1357 (9th Cir. 1990) .................................................................... 12

Star v. Baca,

652 F.3d 1202 (9th Cir. 2011) ............................................................ 5, 9, 10 United States v. Jones,

399 F.3d 640 (6th Cir. 2005) ...................................................................... 18 United States v. Lanier,

520 U.S. 259 (1997) ................................................................................... 18

United States v. Mask, 330 F.3d 330 (5th Cir. 2003) ...................................................................... 18

United States v. Orman,

486 F.3d 1170 (9th Cir. 2007) .................................................................... 18


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint xi

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United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539 (9th Cir. 1989) (en banc) .................................................... 21

FEDERAL DISTRICT COURT CASES A.J.R. v. City of Santa Ana,

No. 8:11-CV-00292-JST, 2011 U.S. Dist. LEXIS 54595 (C.D. Cal. May 11, 2011) ..................................................................................................... 18, 19

Banks v. Montgomery,

No. 3:09-cv-23-TS, 2009 WL 1657465 (N.D. Ind. June 11, 2009) ............. 5 Bryant v. Mattel, Inc.,

No. CV 04-9049 DOC RNBX, 2010 WL 3705668 (C.D. Cal. Aug. 2, 2010) ........................................................................................................... 22

Butler v. Corral,

No. 98 C 802, 1999 WL 1069246 (N.D. Ill. Nov. 22, 1999) ..................... 22 Munns v. Clinton,

822 F. Supp. 2d 1048 (E.D. Cal. 2011) ....................................................... 15 Ovando v. City of Los Angeles,

92 F. Supp. 2d 1011 (C.D. Cal. 2000) ........................................................ 19 Preyer v. McNesby,

No. 3:08cv247, 2009 WL 1605537 (N.D. Fla. June 5, 2009) ...................... 6 Vu v. Meese,

755 F. Supp. 1375 (E.D. La. 1991) ............................................................ 16

Wag-Aero, Inc. v. U.S., 837 F. Supp. 1479 (E.D. Wis. 1993) .......................................................... 16


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint xii

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Williams v. Fort Wayne Police Dep’t.,

No. 1:08-cv-152RM, 2009 WL 1616749 (N.D. Ind. June 9, 2009) ............. 6 Williams v. Hull,

No. 08-135Erie, 2009 WL 1586832 (W.D. Pa. June 4, 2009) ..................... 6 Willis v. City of Fresno,

No. CV F-09-1766 LJO DLB, 2009 U.S. Dist. LEXIS 121015 (E.D. Cal. Dec. 9, 2009) ...................................................................................................................... 19

CONSTITUTIONAL AMENDMENTS U.S. Const. Amend. IV .................................................................................. passim U.S. Const. Amend. V ................................................................................... passim RULES & REGULATIONS Fed. R. Civ. P. 12(b)(6) ........................................................................................... 9

OTHER MATERIALS Laura Carlsen,

Lethal Force on the Border, Huffington Post, June 18, 2010, http://www.huffingtonpost.com/laura-carlsen/lethal-force-on-the-borde_b_617065.html ................................................................................... 9

U.S. Custom and Border Protection Memorandum Re: Use of Safe Tactics and Techniques, Mar. 7, 2014, https://www.documentcloud.org/documents/1061527-border-patrol-use-of-force-directive.html ............................................................... 9


Plaintiffs’ Memorandum of Law in Opposition to the Individual Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint 1

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INTRODUCTION

Plaintiffs’ lawsuit seeks redress for the death of Jesus Alfredo Yañez Reyes

(“Yañez”), who was killed as a result of the United States Border Patrol’s Rocking

Policy and Defendant Nelson and Diaz’s excessive use of force. Pursuant to the

Rocking Policy, Border Patrol agents along the nation’s southern border deemed the

throwing of rocks at them to be per se lethal force to which the agents would

legitimately respond with fatal gunfire. Simply put, Border Patrol agents shot to kill

Mexican nationals who allegedly threw rocks at them, regardless of whether the alleged

rock-throwing posed an imminent risk of death or serious injury to the agents or anyone

else, and regardless of whether other, non-lethal means were available to avert any such

risk. In recent years Border Patrol agents acting pursuant to the Rocking Policy shot and

killed at least thirteen persons. Each of the Supervisor Defendants knew of the unlawful

Rocking Policy through news reports of these killings, complaints directly from the

Government of Mexico and others, highly publicized complaints from international

human rights organizations including the U.N. High Commissioner for Human Rights,

and the results of a U.S. Department of Justice inquiry. Each Supervisor Defendant

nevertheless acquiesced in the policy, causing Defendant Fisher and the agencies to

defend the policy through November 2013.

After Jeh Johnson, the new Secretary of Homeland Security, replaced Defendant

Napolitano in December 2013, his first order of business was to “clarify” the Rocking

Policy. That policy now, for the first time, requires border patrol agents who allegedly

encounter rock-throwing to respond with less than lethal force whenever they can do so

safely. That change in policy came three years too late for Mr. Yañez and his family.



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STATEMENT OF THE FACTS

Plaintiffs’ responses to Defendants’ specific arguments below include the relevant

detailed facts. In broad outline, the facts are these:

On June 21, 2011, two Mexican nationals entered the United States illegally from

the Castillo neighborhood of Ciudad Tijuana. Comp. ¶ 27.1 Defendants Nelson and

Diaz chased and eventually apprehended one of those Mexican nationals, Jose Ibarra-

Murietta. The other Mexican national who had entered the United States with Mr.

Murietta was Mr. Yañez, Plaintiffs’ husband and father. Id. As Agents Nelson and Diaz

were apprehending Mr. Murietta, Mr. Yañez crossed back to the southern side of the

primary border fence and climbed into a tree, where he saw the agents beating Mr.

Murietta. Id. ¶ 37. Although Mr. Yañez was on the southern side of the primary fence,

he was still in United States territory. Id. ¶¶ 37, 87.

One or more of the agents contend that Mr. Yañez threw a board that glanced off

Agent Nelson’s head and that Mr. Yañez was potentially preparing to throw a rock at

Agent Nelson. Id. ¶¶ 38, 39. Mr. Murietta contends that Mr. Yañez had not thrown

anything at either of the agents, but had threatened to record on his cell phone the

agents’ unlawful beating of Mr. Murietta. Id. ¶¶ 49-51. Whichever version of those

events the jury believes, the uncontested facts are that Agent Diaz shot and killed Mr.

Yañez without giving him any warning, without attempting to simply back up away

from the primary fence, and without facing an imminent threat of serious injury or death

to himself or anyone else. Id. ¶¶ 53-54.

The agents used this excessive, lethal force pursuant to a Rocking Policy that was

tolerated and condoned by the Supervisor Defendants. Id. ¶ 56. For years prior to the

killing of Mr. Yañez, all of the Supervisor Defendants knew that Border Patrol agents

along the southern border had a regular pattern and practice of deeming the throwing of 1 References to “Comp.” are to Plaintiffs’ Amended Complaint.



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rocks at them to be per se lethal force that justified the agents’ shooting to kill the

alleged rock-throwers. Id. ¶ 57.

Despite actual knowledge of this patently unlawful policy and practice, the

Supervisor Defendants failed and refused to: (a) issue a lawful policy regarding the use

of force in response to alleged rock-throwing; (b) provide adequate training to agents

regarding lawful responses to alleged rock-throwing; and (c) discipline agents who acted

unlawfully pursuant to the Rocking Policy. Id. ¶ 58.

All of the Supervisor Defendants had actual knowledge of the unlawful Rocking

Policy and acquiesced in it. Mr. Yañez was the ninth of thirteen people killed pursuant

to the policy. Id. ¶ 68. The Attorney General of Mexico directly complained to

Defendant Napolitano about the policy; Defendant Fisher publicly defended it in

response to a report, commissioned by Defendants themselves, that concluded that the

policy was unlawful and should be amended. Id. ¶¶ 71. The other Supervisor

Defendants knew of the policy because it was open and notorious, having been: (1)

broadcast on national news media by representatives of border patrol agents; (2) the

subject of widely publicized complaints from international human rights organizations,

including the U.N. High Commissioner for Human Rights; (3) the subject of consistent

complaints from the Government of Mexico to high-ranking U.S. officials; and (4) the

subject of internal and external reviews and investigations. Id. ¶ 71.



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ARGUMENT

I. PLAINTIFFS MET THE IQBAL “PERSONAL PARTICIPATION” STANDARD BY PLAUSIBLY ALLEGING THAT THE SUPERVISORS HAD KNOWLEDGE OF, AND ACQUIESCED IN, THE UNLAWFUL POLICY.

Defendants’ argument that Plaintiffs failed to sufficiently allege the Supervisor

Defendants’ “personal participation” in the unlawful conduct misapprehends the law and

Plaintiffs’ allegations.

A. “Knowledge and Acquiescence” Is Still the Governing Standard Post-Iqbal.

Based on an over-broad and unsustainable interpretation of Ashcroft v. Iqbal, 556

U.S. 662, 666 (2009), Defendants argue that the “the lesson [to be learned] from Iqbal

[is] that ‘knowledge and acquiescence’ is insufficient to plausibly state a claim for relief

against a supervisor.” Def. Br. at 11. Iqbal taught no such lesson.

Iqbal noted that “[t]he factors necessary to establish a Bivens violation will vary

with the constitutional provision at issue.” 556 U.S. at 676. Proving that the supervisors

knew of and acquiesced in the intentional racial discrimination at issue in Iqbal was not

sufficient, because the substantive claim required that the supervisor himself acted from

racial animus. Id. Purposeful discrimination “requires more than ‘intent as volition or

intent as an awareness of consequences.’” Id. at 676 (quoting Pers. Adm’r of Mass. v.

Freeney, 442 U.S. 256, 279 (1979)) (emphasis added). “Mere knowledge” that someone

else is acting discriminatorily does not demonstrate that a supervisor himself has a

discriminatory mindset.2

2 Notably, even for the discrimination claims under review in Iqbal, the Court did not wholly preclude supervisory liability based on knowledge and acquiescence. The Court rejected supervisory liability in the discrimination context premised only on a supervisor’s “mere knowledge.” 556 U.S. at 676.



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In stark contrast, Plaintiffs’ excessive-force claims here do not require proof of

discriminatory purpose or intent – officials may be liable regardless of their subjective

state of mind. See Herring v. U.S., 555 U.S. 135, 145-46 (2009) (Fourth Amendment

“look[s] to an officer’s knowledge and experience, but not his subjective intent”).

Consequently, a supervisor’s liability for his “own misconduct” will attach where he

fails to “’properly superintend[] the discharge’ of his subordinates’ duties.” Iqbal, 555

U.S. at 676 (quoting Dunlop v. Munroe, 7 Cranch 242, 269 (1812)).

The Ninth Circuit has definitively resolved this issue – the Court has continued to

apply the “deliberate indifference,” “knowledge or acquiescence” and “failure to train”

supervisory liability standards, just as it did pre-Iqbal. “[N]othing in Iqbal indicat[es]

that the Supreme Court intended to overturn longstanding case law on deliberate

indifference claims against supervisors. . . . A plaintiff may state a claim against a

supervisor for deliberate indifference based upon the supervisor’s knowledge of and

acquiescence in unconstitutional conduct by his or her subordinates.” Star v. Baca, 652

F.3d 1202, 1207 (9th Cir. 2011); see also OSU Student Alliance v. Ray, 699 F.3d 1053,

1074 (9th Cir. 2012) (allegations of supervisory knowledge and acquiescence suffice to

state claims for speech-based First Amendment and equal protection claims); Ammons v.

Wa. Dept. of Social & Health Servs., 648 F.3d 1020, 1034 n.16 (9th Cir. 2011)

(supervisor may be liable for a constitutional rights violation based on neglect in failing

to properly supervise subordinates’ performance of their duties).3

3 Other federal courts nationwide have also continued to apply these theories of supervisory liability post-Iqbal. See, e.g., Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (“Proof of a supervisor's personal direction or knowledge of and acquiescence in a constitutional violation often sufficed to meet the personal involvement, causal connection, and deliberate indifference prongs of the affirmative link requirement for . . . supervisory liability.”); Banks v. Montgomery, No. 3:09-cv-23-TS, 2009 WL 1657465 (N.D. Ind. June 11, 2009) (“Supervisory liability will be found, however, if the supervisor, with knowledge of the subordinate’s conduct, approves the



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In sum, supervisors continue to be liable post-Iqbal:

(1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a reckless or callous indifference to the rights of others.

Moss v. U.S. Secret Serv., 711 F.3d 941, 967 (9th Cir. 2013) (quoting Al-Kidd v.

Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009)). These independent sources of a

supervisor’s liability are characterized in shorthand as “knowledge and acquiescence.”

For claims not involving discrimination – like the Plaintiffs’ claims here – supervisors

are liable for their “knowledge and acquiescence” because “it is logical to assume that

continued official tolerance of repeated misconduct facilitates similar unlawful actions in

the future.” Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990). And the Complaint

here alleges exactly such derelictions of supervisory responsibility.

B. The Complaint Alleges Facts from Which Each Supervisor’s Knowledge and Acquiescence Can Be Reasonably Inferred.

Under Ninth Circuit precedent, 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].” Chavez v. U.S., 683 F.3d 1102, 1110 (9th Cir. 2012).

conduct and the basis for it.”) (internal citations omitted); Williams v. Fort Wayne Police Dep’t., No. 1:08-cv-152RM, 2009 WL 1616749 (N.D. Ind. June 9, 2009) (applying deliberate indifference to Fourth and Fourteenth Amendment unlawful arrest and excessive force claims); Preyer v. McNesby, No. 3:08cv247, 2009 WL 1605537 (N.D. Fla. June 5, 2009) (applying deliberate indifference to a Fourteenth Amendment excessive force claim); Williams v. Hull, No. 08-135Erie, 2009 WL 1586832 (W.D. Pa. June 4, 2009) (applying deliberate indifference to Eighth Amendment claim).



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Plaintiffs’ allegations here easily satisfy that standard as to each of the Supervisor

Defendants.

1. The Supervisor Defendants tolerated and endorsed a policy of treating rock-throwing as per se lethal force to which agents could respond with fatal gunfire.

Defendants apparently contend that Plaintiffs have failed to sufficiently allege a

policy of responding to alleged rock-throwing with excessive force. Def. Br. at 3, 12.

That is nonsense.

The Complaint alleges in detail that the Supervisor Defendants tolerated and

condoned a policy of treating the alleged throwing of rocks at agents to be per se lethal

force to which they could respond with fatal gunfire. Comp. 2-3. The policy did not

require agents to respond with less-than-lethal force when practicable or to take other

measures, such as simply backing up away from the rock-thrower. The Complaint:

• Specifically identifies thirteen killings in response to alleged rock-throwing, each of which resulted from excessive use of force. Id. ¶ 67.

• Alleges that these thirteen killings, including that of Mr. Yañez, resulted from a policy and practice pursuant to which “agents shoot to kill Mexican nationals who allegedly throw rocks at them, regardless of whether the alleged rock-throwing poses an imminent risk of death or serious injury to the agents or anyone else, and regardless of whether other, non-lethal means are available to avert any such risk.” Id. ¶ 3.

• Alleges that the U.S. Department of Justice concluded that an agent “did not act inconsistently with [Border Patrol] policy or training regarding use of force” when he shot and killed a 15-year-old boy standing across the border, where the agent’s first show of force was the lethal shot, the boy had not in fact thrown any rock, and the agent “could easily have retreated further away from the border area” if he somehow felt threatened. Id. ¶ 85.

• Alleges that “representatives of Border Patrol agents regularly and publicly stated that agents are justified in treating the throwing of rocks at them as per se lethal force, regardless of whether the alleged rock-throwing poses an imminent risk of death or serious injury to the agents or anyone else, and



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regardless of whether the agents had available other, non-lethal alternatives.” Id. ¶ 58.

• Alleges that these public statements to national news media, none of which the

Supervisor Defendants ever countermanded, asserted, for example, that “Rocks Assaults Are Deadly Force,” id. ¶ 59; that “[w]hen you pick up a rock and throw it at a police officer you should expect to have deadly force directed back toward you,” id. ¶ 62; and that “[w]hen rocks are thrown at us, that is considered deadly force.” Id. ¶ 63.

• Alleges that a spokesperson for the Border Patrol itself told the national media that “rocks are considered deadly weapons.” Id. ¶ 64.

Defendant Fisher confirmed the nature and existence of the Rocking Policy when

he publicly rejected expert recommendations from the Police Executive Research Forum

(“PERF”) to amend the use-of-force policy to require agents to respond to alleged rock-

throwing with less-then-lethal force whenever practicable. Id. ¶ 71. Defendant Fisher

then further confirmed the nature and existence of the policy when, at the insistence of

the newly installed Secretary of Homeland Security, he did amend (in his words

“clarify”) the policy, providing for the first time that agents should:

• “avoid placing themselves in positions where they have no alternative to using deadly force;”

• “not discharge firearms in response to thrown or hurled projectiles unless the agent has a reasonable belief, based on the totality of the circumstances, to include the size and nature of the projectiles, that the subject of such force poses an imminent danger of death or serious injury;” and

• first “seek[] cover or distanc[e] themselves from the immediate area of

danger.”4 These requirements were not in the prior policy or training, and their absence is among

the lapses challenged in the Complaint. See, e.g., Comp. ¶¶ 55, 58, 67.

4 See U.S. Custom and Border Protection Memorandum Re: Use of Safe Tactics and Techniques, Mar. 7, 2014, https://www.documentcloud.org/documents/1061527-border-patrol-use-of-force-directive.html, attached as Exhibit P.



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Defendants cannot rewrite history. Plaintiffs’ allegations of the existence of a

prior unlawful policy and training are clearly plausible.

2. The Complaint alleges that Defendant Napolitano had specific notice from the Government of Mexico.

Unable to deny the existence of the unlawful Rocking Policy, the Supervisor

Defendants apparently deny that they were aware of its existence. Def. Br. at 16. The

Complaint plausibly alleges otherwise.

With respect to Defendant Napolitano, the Complaint refers to, and incorporates

by reference, Laura Carlsen’s 2010 article in the Huffington Post, “Lethal Force on the

Border.” Comp. ¶ 71, attached for convenience as Exhibit Q.5 The article clearly states

that “Attorney General Fernando Gomez Mont told Homeland Security Head Janet

Napolitano that the ‘unjustified use of force against our population is unacceptable to the

Mexican government.’”6

3. The Complaint alleges that Defendant Fisher had specific notice of, and responsibility for, the Rocking Policy.

The Complaint makes similar specific allegations concerning Defendant Fisher.

As noted above, in November 2013 Defendant Fisher specifically rejected PERF’s report

that the Rocking Policy was unlawful and should be amended to “no longer permit

agents to treat the throwing of rocks at them as per se deadly force to which they can

5 If the Court finds that Plaintiffs’ allegations against any of the Supervisor Defendants is insufficient, we respectfully request leave to amend the Complaint to cure any deficiencies. Plaintiffs believe that news articles, Congressional testimony, and other sources will provide any additional required specificity regarding the Supervisors’ knowledge of and acquiescence in the unlawful policy. 6 Laura Carlsen, Lethal Force on the Border, Huffington Post, June 18, 2010, http://www.huffingtonpost.com/laura-carlsen/lethal-force-on-the-borde_b_617065.html. It is well settled that, “courts must consider the complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007).



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respond with lethal gunfire.” Comp. ¶ 71. True, Defendant Fisher’s rejection of these

recommendations came in 2013, but he had been in the same supervisory role since May

2010. Id. ¶ 14. It is a reasonable inference that he did not first become aware of the

unlawful policy on the day that he announced he was rejecting expert recommendations

to reform it.

4. The Complaint plausibly alleges that each Supervisor Defendant had knowledge of and acquiesced in the unlawful policy because it was open and notorious.

No claim should be dismissed unless the complaint, taken as a whole, fails to

give rise to a plausible inference of actionable conduct. Bell Atl. v. Twombly, 550 U.S.

566, 566 (2006). Defendants nevertheless ask the Court to read Plaintiffs’ complaint

one allegation at a time, without giving collective force and effect to the allegations

taken as a whole.

Taking all of the allegations in the complaint as true, as is required, it is evident

that each and every Supervisor Defendant had knowledge of, and acquiesced in, the

unlawful Rocking Policy. The policy was open and notorious, as evidenced by:

• The fatal shooting of eight alleged rock-throwers before the killing of Mr. Yañez, all of them clearly the result of excessive use of force and many of them extensively covered in the media (Comp. ¶ 68). See Starr v. Baca, 652 F.3d at 1216 (defendant supervisor was given notice of subordinates’ unlawful practices in light of “several reports[] of systematic problems in the county jails under his supervision that have resulted in [similar] deaths and injuries”).

• Repeated statements to national news media by agents’ representatives that agents appropriately treated rock-throwing as per se lethal force, for example that “Rock Assaults Are Deadly Force,” id. ¶ 59; that “[w]hen you pick up a rock and throw it at a police officer you should expect to have deadly force directed back toward you,” id. ¶ 62; and that “[w]hen rocks are thrown at us, that is considered deadly force.” Id. ¶ 63.

• Years of nationally aired complaints by national and international human

rights organizations, including the U.N. High Commissioner for Human



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Rights, that responding to rock-throwing with fatal gunfire is (absent highly unusual circumstances) unlawful excessive force. Id. ¶ 71.

• Consistent complaints from the Government of Mexico to the highest-

raking U.S. officials, including the President, the Secretary of State, and Defendant Napolitano. Id. ¶ 71.

• Internal and external investigations into the policy. Id. ¶ 71.

All of the Supervisor Defendants were in the chain of command from Defendants

Napolitano and Fisher – who indisputably had direct, specific knowledge of the unlawful

policy – to Agents Nelson and Diaz who acted pursuant to it. Id. ¶¶ 57, 72-76. The

allegations summarized above plausibly allege that not only those four Defendants, but

all of them, knew of the policy.

Knowing of the policy, the Supervisor Defendants also obviously acquiesced in it.

Merely doing nothing in the face of an unconstitutional practice over which a supervisor

has authority is sufficient to constitute acquiescence. Starr v. Baca, 652 F.3d at 1208

(“We have held that ‘acquiescence or culpable indifference’ may suffice to show that a

supervisor ‘personally played a role in the alleged constitutional violations.’”) (quoting

Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005)).7 Here, the Supervisor

Defendants did not merely acquiesce in the policy; they embraced it. For the better part

of a decade they rejected all of the national and international demands for change, going

so far as to reject the reforms demanded by the very experts they had hired to review the

policy.

7 Defendants’ cases are easily distinguishable. The complaint in Blantz v. California Department of Corrections and Rehabilitation, 727 F.3d 917, 927 (9th Cir. 2013), relied solely on the supervisor’s position to infer that he knew of a single isolated unconstitutional incident. The complaint in Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012), failed to identify the specific policy or the specific event on which plaintiffs premised liability. And the complaint in Chavez v. U.S., 683 F.3d 1102, 1111 (9th Cir. 2012), failed to allege that defendant’s approval of the policy caused others to inflict a constitutional injury.



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II. THE COMPLAINT PLEADS SUFFICIENT ALLEGATIONS TO CONFER PERSONAL JURISDICTION OVER DEFENDANTS WINKOWSKI, AGUILAR, AND MCALEENAN. The Court should deny Defendants Winkowski, Aguilar, and McAleenan’s motion

to dismiss the claims against them based on lack of personal jurisdiction. In the

alternative, Plaintiffs should be given leave to take jurisdictional discovery with respect

to those Defendants.

A. The Legal Standard To defeat a motion to dismiss for lack of personal jurisdiction, “plaintiff need only

make a prima facie showing of jurisdictional facts.” Sher v. Johnson, 911 F.2d 1357,

1361 (9th Cir. 1990). The Court considers the plaintiff’s pleadings and any affidavits in

order to determine whether the plaintiff has met its burden as to personal jurisdiction.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).

A court may exercise either general or specific personal jurisdiction over a

defendant. General jurisdiction exists when the defendant has sufficient contacts to

“constitute the kind of continuous and systematic general business contacts that

‘approximate physical presence.’” Glencore Grain Rotterdam B.V. v. Shivnath Rai

Harnarain Co., 284 F.3d 1114, 1119 (9th Cir. 2002) (quoting Bancroft & Masters, Inc.

v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)).

Specific jurisdiction exists when defendant has sufficient minimal contacts with

the forum state such that the assertion of personal jurisdiction “does not offend

‘traditional notions of fair play and substantial justice.’” Int’l Shoe v. Washington, 326

U.S. 310, 317-18 (1945). The Ninth Circuit has developed a three-part test for specific

jurisdiction: (1) The non-resident defendant must purposefully direct his activities or

consummate some transaction with the forum or resident thereof; or perform some act by

which he purposefully avails himself of the privilege of conducting activities in the

forum, thereby invoking the benefits and protections of its laws; (2) the claim must be

one which arises out of or relates to the defendant's forum-related activities; and (3) the



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exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must

be reasonable. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008). “The

plaintiff bears the burden on the first two prongs. If the plaintiff establishes both prongs

one and two, the defendant must come forward with a ‘compelling case’ that the exercise

of jurisdiction would not be reasonable.” Id.

Plaintiffs here have made a prima facie showing of grounds for personal

jurisdiction over Defendants Winkowski, Aguilar, and McAleenan under both theories

of personal jurisdiction. B. The Court has General Personal Jurisdiction Over Defendants Aguilar,

Winkowski, and McAleenan. Without the benefit of any discovery, Plaintiffs have already uncovered evidence

that supports the Court’s exercise of general personal jurisdiction. For instance, with

respect to Defendant McAleenan, Plaintiffs discovered that California is the issuing state

for his social security number, Appendix 1, Exhibit B at 1; he was admitted to the State

Bar of California on December 8, 1998, see Appendix 1, Exhibit C; and he practiced law

here for many years, Appendix 1, Exhibit F.

Defendant McAleenan also apparently owns a home in Glendale, California,

Appendix A, Exhibit D, and previously resided at more than nine addresses in

California. See Appendix A, Exhibit B.

Publicly available information reveals that Defendants Aguilar and Winkowski

also have regular and substantial contacts with California. For example, Defendant

Winkowski: • “was the Port Director at Los Angeles Airport, one of the world’s busiest

transportation hubs. He was assistant District Director in Los Angeles from 1986 until 1995, after rising through the ranks and holding several mission-critical positions at headquarters.” Appendix 1, Exhibit K.

• was a keynote speaker for the AAEI Conferences and Events in Long Beach,

California, Appendix 1, Exhibit K.



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• was a keynote speaker for the FTC Tradewatch Foreign Trade Association Event in Long Beach, California on February 17, 2011, Appendix 1, Exhibit L.

• was a keynote speaker for the Maritime Security Convention held in Long

Beach, California from November 18-19, 2008, Appendix 1, Exhibit M.

• attended a NCBFAA Meeting in January 2008 to lead a “Customs Session.” Appendix 1, Exhibit O.

Public information similarly shows Defendant Aguilar’s regular pattern of contact

with California. Defendant Aguilar:

• was actively involved in California State’s financial aid and work authorization policies for immigrants. See Appendix 1, Exhibit E;

• visited El Centro, California for a California Border Patrol Agent’s memorial

service, Appendix 1, Exhibits H & I; and

• spoke at the West Coast Trade Symposium in Long Beach, California, Appendix 1, Exhibit O.

Defendants’ substantial contacts with the State of California, including Defendant

Winkowski and McAleenan’s lengthy residencies in the State, and McAleenan’s

admission to the State Bar and the issuance of a social security number in the State,

reflect their substantial and continuous and systemic contacts with the forum state such

that the assertion of personal jurisdiction is constitutionally fair. See Tuazon v. R.J.

Reynolds Tobacco Co., 433 F.3d 1163, 1171 (9th Cir. 2006) (citing Helicopteros

Nacionales de Colombia, S.A. . v. Hall, 466 U.S. 408, 415 (1984)).

C. The Court has Specific Personal Jurisdiction Over Defendants Aguilar, Winkowski, and McAleenan.

The record, read in the light most favorable to the Plaintiffs, also shows that the

Supervisor Defendants purposefully availed themselves of the benefits and protections

of California by establishing “minimum contacts” with the State.

Defendant Aguilar served as the Acting Commissioner of CBP from January 2012

to March 2012, and as the Acting Deputy Commissioner of CBP from April 2010 to



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December 2011. Comp. ¶ 11. Defendant Winkowski was the Commissioner of the

CBP, a position he held from March 30, 2013 until March 6, 2014. Id. ¶ 10. From

December 2011 to August 2012 he served as the Deputy Commissioner of CBP, and

before that was the Assistant Commissioner of CBP in the Office of Field Operations.

Id. Defendant McAleenan has served as the Deputy Commissioner of CBP from March

2013 to the present. Id. ¶ 13. When Defendants killed Mr. Yañez in June 2011,

Defendant McAleenan was the Deputy Assistant Commissioner of CBP in the Office of

Field Operations. Id.

The Complaint alleges that these Defendants were the “commanding officers of

the Agents,” id. ¶¶ 10, 11, 13, were responsible for the Agents’ training, id., and that

each of them was “personally responsible for approving and implementing the specific Border Patrol use-of-force policies, including the Rocking Policy, that resulted in Yañez’s death.” Id (emphasis added). The Complaint further makes clear

that all of “the events and omissions giving rise to the claims occurred in this District.” Id. ¶ 25 (emphasis added); see also Supra Part I.B.

Defendants cite Munns v. Clinton, 822 F. Supp. 2d 1048, 1078 (E.D. Cal. 2011),

for the proposition that a supervisor’s mere “oversight” over national policy does not

create personal jurisdiction in every forum in the nation. Def. Br. at 6. But the Munns

Plaintiffs offered only general allegations that the Defendants “over[saw] Department

policies,” 822 F. Supp. 2d at 1078, and that “Defendant Clinton ‘violat[ed] the

constitution through her continuation of the ultra vires [sic] and Unconstitutional

policies of her predecessor,’” id.

In stark contrast, the Complaint here alleges that these three supervisors were

“personally responsible” for training the Agents who shot and killed Mr. Yañez in

California, and that they were “personally responsible” for approving and

implementing the “specific Border Patrol use-of-force policies . . . that resulted in



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Yañez’s death.” Comp. ¶¶ 10, 11, 13. Plaintiffs established above that these

allegations of personal responsibility properly state a claim against these supervisors for

the unlawful killing of Mr. Yañez in California. See Supra Part I.B. Being personally

responsible for his death in California, these Defendants cannot avoid personal

jurisdiction in this district.

This conclusion is fortified by a case on which Defendants rely, Wag-Aero, Inc. v.

U.S., 837 F. Supp. 1479, 1485 (E.D. Wis. 1993). The court there held that specific

jurisdiction exists where, as here, 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.” Wag-Aero, Inc., 837 F. Supp. at 1484-

85.8

D. In the Alternative, the Court Should Grant Jurisdictional Discovery. If the Court determines that Plaintiffs have not yet established personal

jurisdiction over these supervisors, jurisdictional discovery is necessary. Plaintiffs show

the basis for jurisdictional discovery in a separately filed Motion for Leave to Conduct

Jurisdictional Discovery and supporting memorandum.

III. THE FOURTH AMENDMENT REMEDY IS NOT EXCLUSIVE TO THE EXTENT THAT AGENT DIAZ WAS NOT ARRESTING OR DETAINING MR. YAÑEZ. Defendants remarkably contend, notwithstanding the plain language of the due

process clause, that Mr. Yañez’s life was not protected by the Fifth Amendment, but was

protected, if at all, only by the Fourth Amendment. Def. Br. at 16-17. But the Fifth 8 Defendants’ other cases are clearly distinguishable. See Hill v. Pugh, 75 F. App’x 715, 719 (10th Cir. 2003) (plaintiffs failed to allege any personal participation by the supervisory defendants, instead contending that they had “overall responsibility for Bureau of Prisons’ operations in Colorado”); McCabe v. Basham, 450 F. Supp. 2d 916, 926 (N.D. Iowa 2006) (plaintiffs attempted to premise jurisdiction over senior supervisors based on their employees’ conduct rather than the supervisor’s own personal participation); Vu v. Meese, 755 F. Supp. 1375, 1378 (E.D. La. 1991) (plaintiffs did not contend that supervisors had any personal involvement in the unconstitutional actions).



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Amendment clearly protects every person’s right to be deprived of life only pursuant to

due process of law. U.S. Const. Amend. V; see Garner v. Tennessee, 471 U.S. 1, 9

(1985) (“fundamental interest in [one’s] own life need not be elaborated upon”).

Quoting Chavez v. Martinez, 538 U.S. 760, 773 n.5 (2003), Defendants note that

“use-of-force claims in the context of a seizure ‘are governed solely by the Fourth

Amendment’s prohibitions against unreasonable seizures, because the Fourth

Amendment provided the explicit source of constitutional protection against such

conduct.” Def. Br. at 16. The Complaint alleges, however, that Agent Diaz’s use of

deadly force against Mr. Yañez was not in the course of an arrest, stop, or other seizure

of him, and Mr. Yañez was not a U.S. citizen. A. The Fourth Amendment Is Not Exclusive Because the Complaint

Alleges that the Agents Were Not Attempting to Detain or Arrest Mr. Yañez.

The rule articulated in Chavez was drawn from Graham v. Connor, 490 U.S. 386,

395 (1989), which applies only to use-of-force claims in the context of a seizure. See Chavez, 538 U.S. 773 n.5; see also Graham, 490 U.S. at 386. Plaintiffs’ Complaint

alleges that Agent Diaz’s shooting of Mr. Yañez was not necessarily part of an effort to

detain or arrest him.9 Indeed, Mr. Yañez was standing on the southern side of the

U.S./Mexico primary border fence. Comp. ¶ 37. The Complaint does not allege that

Agent Diaz intended to venture to the southern side of the primary fence to detain or

arrest Mr. Yañez – indeed Diaz did not even cross the fence to render assistance to Mr.

Yañez after having shot him. Id. ¶ 42.

Defendants appear to suggest that an officer’s killing of a person ipso facto

constitutes a “seizure” of him as a matter of law. See Dfs. Brf. at 16. Not so.

9 Plaintiffs also plead, in the alternative, that Defendants’ conduct violated Mr. Yañez’s Fourth Amendment rights to be free from unreasonable search and seizure. Comp. ¶¶ 124-138.



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“[N]ot all encounters between law enforcement agents and citizens amount to

seizures of the person.” United States v. Orman, 486 F.3d 1170, 1174 (9th Cir. 2007).

Instead, a “seizure” occurs only when an officer “has in some way restrained the liberty

of the citizen.” United States v. Mask, 330 F.3d 330, 336 (5th Cir. 2003) (citations

omitted); see also United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (Graham “does

not hold that all constitutional claims relating to physically abusive government conduct

must arise under either the Fourth or Eight Amendments”); Petta v. Rivera, 143 F.3d

895, 900 (5th Cir. 1998) (Graham “explicitly held only that all ‘claims that law

enforcement officers have used excessive force – deadly or not – in the course of an

arrest, or other ‘seizure’” should be analyzed under the Fourth Amendment”) (citations

omitted) (emphasis in original).

A “seizure” occurs only when the officer intended to detain or arrest the plaintiff –

when the officer “sought to stop the suspect.” Cnty of Sacramento v. Lewis, 523 U.S.

833, 844 (1998). For example, no “seizure” occurs, and a substantive due process claim

is viable, when an officer kills an innocent bystander. Id. And no seizure occurs, and a

substantive due process claim is viable, when an officer intends to kill a civilian. See,

e.g., Martinez-Rivera v. Ramos, 498 F.3d 3, 5, 9-10 (1st Cir. 2007); A.J.R. v. City of

Santa Ana, No. 8:11-CV-00292-JST, 2011 U.S. Dist. LEXIS 54595, at *1, *10 (C.D.

Cal. May 11, 2011); Willis v. City of Fresno, No. CV F-09-1766 LJO DLB, 2009 U.S.

Dist. LEXIS 121015, at *3 (E.D. Cal. Dec. 9, 2009); Ovando v. City of Los Angeles, 92

F. Supp. 2d 1011, 1015, 1021 (C.D. Cal. 2000).

The facts alleged here – without the benefit of discovery – plausibly allege a non-

seizure. Mr. Yañez was unarmed, unthreatening, and located on the southern side of the

primary border fence where Agents Diaz and Nelson had no intention to stop or arrest

him. The Complaint alleges in the alternative that Agent Diaz intentionally murdered

Mr. Yañez in order to stop him from video-recording an unlawful beating. Under either



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circumstance, each of which is plausible and consistent with the facts alleged, Agents

Diaz and Nelson were not attempting to stop or arrest Mr. Yañez, and Plaintiffs’ claim

under the Fifth Amendment is viable.

B. The Fourth Amendment Is Not Exclusive Because the Complaint Alleges that Mr. Yañez Was Not a U.S. Citizen.

Graham and its progeny also make the Fourth Amendment the exclusive remedy

only if the claims are brought by “free [U.S.] citizens.” Mr. Yañez was not a U.S.

citizen, so the Graham limitation simply does not apply.

Defendants cannot avoid this outcome by asserting that Graham’s reference to

“free citizens” was inadvertent or should somehow be ignored. A sister circuit of this

Court noted in Martinez-Aguero v. Gonzales, 459 F.3d 618, 624 n.5 (5th Cir. 2006), that

“Graham by its own terms, 490 U.S. at 395, 109 S.Ct. 1865, applies only to ‘free

citizens.’” Accordingly, despite Graham, the Fifth Amendment’s guarantee of

substantive due process “may sweep more broadly than does the Fourth Amendment

guarantee.” Martinez-Aguero, 459 F.3d at 624 n.5.10

V. THE INDIVIDUAL-CAPACITY DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY ON PLAINTIFFS’ EQUAL PROTECTION CLAIM. Defendants seek dismissal of Plaintiffs’ Fifth Amendment equal protection claim

on the ground that Agent Diaz purportedly had no discriminatory animus. Def. Br. at 25.

But Plaintiffs’ claim is that the policy resulted from racial and national animus. See,

10 This point is important because the United States sometimes argues that the Fourth Amendment protects only “the people,” which the United States sometimes argues includes only U.S. citizens. The Government thus sometimes plays a game of Constitutional three-card monte, arguing that all plaintiffs must pursue excessive-force claims solely under the Fourth Amendment, and then arguing that the Fourth Amendment does not protect U.S. citizens. The Government thus contends that it can deprive non-U.S. citizens of their lives with no Constitutional constraints whatever. It is therefore vitally important that the Court restrict Graham and its progeny to its terms – it applies only to “free [U.S.] citizens.” 490 U.S. at 395.



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e.g., Ashcroft v. Iqbal, 556 U.S. at 682-83 (focusing on the discriminatory animus of the

challenged governmental policy); Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir.

1999) (Fifth Amendment claim for discrimination is viable where policy has an adverse

effect and that it was motivated by discriminatory animus); United States v. Jones, 399

F.3d 640, 644-45 (6th Cir. 2005) (claim viable where plaintiff “show[s] that the

prosecutorial policy was motivated by racial animus”).

Defendants’ motion is wholly devoid of any discussion of the discriminatory

intent animating the Rocking Policy. Yet the Complaint makes that animus clear. The

policy discriminated against individuals “on the basis of their Hispanic descent and

perceived Mexican origin, thus violating their substantive due process rights guaranteed

under the United States Constitution.” Comp. ¶ 89. The discriminatory animus is

highlighted by the fact that the Border Patrol does not “condone or implement a similar

policy of systematic, institutionalized use of excessive, lethal force with respect to

encounters between Border Patrol agents and foreign civilians at the nation’s northern

border, or with respect to any other ethnic or national group.” Id. ¶ 93. Moreover, no

other police force in the nation permits its officers to treat the throwing of rocks at them

as per se lethal force. Id. This is all part of a well-documented culture within the Border

Patrol to mistreat and deny basic dignity to Mexican nationals. Id. ¶¶ 90-92.

These allegations easily satisfy Iqbal’s requirement that the policy was “adopted

and implemented not for a neutral, investigative reason but for the purpose of

discriminating on account of race, religion, or national origin.” 556 U.S. at 677. VI. THE COMPLAINT PLAUSIBLY ALLEGES DEFENDANT NELSON’S LIABILITY.

The Complaint plausibly alleges that Defendant Nelson is liable for the excessive

use of force against Mr. Yañez. First, the Complaint alleges that Agent Nelson and

Agent Diaz conspired to assault Mr. Murrieta and that Mr. Diaz shot Mr. Yañez in

furtherance of that unlawful conspiracy. Second, the Complaint alleges that Agent



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Nelson’s unconstitutional beating of Mr. Murrieta proximately caused Agent Diaz to use

deadly force against Mr. Yañez. Third, the Complaint alleges that Agent Nelson had

time to stop Agent Diaz before he used excessive force.

Conspiracy. The Complaint alleges that Agent Nelson conspired with Agent Diaz

to unlawfully beat Mr. Murrieta, and in the commission and in furtherance of that

conspiracy Agent Diaz shot Mr. Yañez. Agent Diaz’s shooting of Mr. Yañez was a

foreseeable consequence of the conspiracy, and therefore Agent Nelson is liable for Mr.

Yañez’s death.

To establish a defendant’s liability for a conspiracy, “a plaintiff must demonstrate

the existence of an agreement or meeting of the minds to violate constitutional rights.”

Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999) (citing

United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir.

1989) (en banc)) (internal quotations omitted). The agreement or meeting of the minds

“need not be overt, and may be inferred on the basis of circumstantial evidence such as

the actions of the defendants.” Mendocino Envtl. Ctr., 192 F.3d at 1301 (9th Cir. 1999).

Conspirators are liable for the foreseeable overt acts of their co-conspirators done in the

commission or in furtherance of the conspiracy. Bryant v. Mattel, Inc., No. CV 04-9049

DOC RNBX, 2010 WL 3705668 (C.D. Cal. Aug. 2, 2010) (citing Pinkerton v. United

States, 328 U.S. 640, 647 (1946)); see also Beltz Travel Serv., Inc. v. Int'l Air Transp.

Ass'n, 620 F.2d 1360, 1367 (9th Cir. 1980).

The Complaint plainly alleges that Defendants Nelson and Diaz unlawfully beat

Mr. Murrieta: • Agent Nelson “began to strike Murrieta while pinning him to the ground.”

Comp. ¶ 36. • “Yañez climbed a tree that leaned against the southern side of the primary

fence near the area where Agent Nelson and Murrieta were grappling in the road.” Id. ¶ 37.



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• “Agent Nelson and Agent Diaz had Murrieta down on the ground and were beating him.” Id. ¶ 47.

• “Yañez yelled that he was going to use his cellphone to take video and pictures of the beating. Upon hearing Yañez’s threat to record the Agents’ attack on Murrieta, Agent Diaz stopped beating Murrieta, stood up, and, without warning or provocation, shot Yañez in the head.” Id. ¶ 48.

These allegations are not “bare assertions” and are far from the “’formulaic

recitation of the elements’ of a constitutional discrimination claim” at issue in Iqbal. 556 U.S. at 681.

The agents’ joint beating of Mr. Murrieta is sufficient to establish a meeting of the

minds. Butler v. Corral, No. 98 C 802, 1999 WL 1069246 (N.D. Ill. Nov. 22, 1999)

(“[H]ere the evidence would support a finding that [conspirator 1] held [plaintiff] down

while [conspirator 2] punched [plaintiff]. … It can be inferred that an implicit agreement

existed between [conspirators].”).

In one version of events, Mr. Yañez threw a rock and a board at Agent Nelson to

try to get him to stop the beating, and Agent Diaz shot Mr. Yañez to stop him from

stopping the beating. Comp. ¶¶ 40-41. In another version, Mr. Yañez did not throw any

board or rock, and Agent Diaz shot Mr. Yañez to prevent him from videotaping the

beating. Id. ¶¶ 46-49. In either version, Agent Nelson precipitated the events by beating

Mr. Murrieta. And even in the rock-throwing version Agent Nelson did not simply drag

Murrieta further away from the border fence, as he easily could have done. Id. ¶ 55. As

the instigator of the beating, Agent Nelson is plainly shares responsibility for Agent

Diaz’s shooting, the purpose of which was to allow the beating to continue and/or to

keep it from being recorded. Proximate Cause. These same facts establish that Defendant Nelson is liable for

Mr. Yañez’s death because Nelson’s unlawful beating of Murrieta created the

circumstances in which Agent Diaz fired the fatal shot. Where, as here, an officer’s

unconstitutional conduct provokes a violent response that results in the use of deadly



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force, that deadly force is unreasonable and unconstitutional as a matter of law.

Billington v. Smith, 292 F.3d 1177, 1189-91 (9th Cir. 2002) (“[E]ven though the officers

reasonably fired back in self-defense, they could still be held liable for using excessive

force because their reckless and unconstitutional provocation created the need to use

force.”). The officer's initial unconstitutional provocation is the proximate cause of the

subsequent application of deadly force. Id. (“[T]he officer’s initial unconstitutional

provocation . . . would proximately cause the subsequent application of deadly force.”)

(citing Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997) (“[T]he requisite causal

chain can occur through the setting in motion [of] a series of acts by others which the

actor knows or reasonably should know would cause others to inflict the constitutional

injury.”)). Courts must judge the “reasonableness of a particular use of force . . . with

the perspective of a reasonable officer on the scene.” Graham v. Connor, 490 U.S. at

386. This includes “events leading up to the shooting as well as the shooting.”

Billington, 292 F.3d at 1190.

The Complaint plainly alleges that Agent Nelson used excessive force against Mr.

Murrieta. • Agent Nelson “began to strike Murrieta while pinning him to the ground.” Comp.

¶ 36. • “Agent Nelson and Agent Diaz had Murrieta down on the ground and were

beating him. Agents Nelson and Diaz easily outweighed and outmuscled the slight-framed Murrieta, who was facedown in the dirt road. In fact, when Murrieta was eventually taken away by a cadre of Border Patrol agents, he was disoriented and his mouth was covered with his own blood.” Id. ¶ 47.

• “The agents could have simply dragged Murrieta (who is of slight build) further away from Yañez.” Id. ¶ 55.

As noted in detail above, the Complaint further alleges that Defendant Nelson’s beating

Murrieta provoked Mr. Yañez to respond either by throwing objects at Agent Nelson or

threatening to record the beating with on a cell phone. Id. ¶¶ 39, 49. And Agent Diaz



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used deadly force against Mr. Yañez based on his response to the beating that Agent

Nelson was administering to Murrieta. Id. ¶ 38.

Agent Nelson’s use of excessive force against Mr. Murrieta was the proximate

cause of Mr. Yañez’s death.

Timing. Defendants argue that Agent Nelson did not violate Mr. Yañez’s

constitutional rights because he had no reasonable opportunity to intervene in Agent

Diaz’s use of excessive force against Mr. Yañez. Def. Br. at 19-20. Defendants point to

only two factual allegations regarding Agent Nelson’s opportunity to intervene, that

“Defendant Diaz ‘without warning’ and without ‘utter[ing] a single word,’ discharged

his weapon.” Def. Br. at 19. In fact, the relevant sequence of events is not so brief.

The following well-pleaded and non-conclusory factual allegations are relevant to Agent

Nelson’s opportunity to intervene: • While Agent Nelson attempted to subdue Murrieta, Mr. Yañez threw two rocks

and a nail-studded board toward Agent Nelson. Comp. ¶¶ 38-39.

• Agent Diaz arrived to help Agent Nelson subdue Murrieta. Id. ¶ 40. • Agent Diaz told Mr. Yañez to get off the fence. Id. • Agent Diaz began helping Agent Nelson get control of Murrieta. Id. • Agent Diaz pulled away from the scuffle with Murrieta. Id. ¶ 41.

• Agent Diaz removed his side arm from its holster. Id. • Agent Diaz shot Mr. Yañez. Id.

The Complaint is silent as to the amount of time that elapsed between Agent Diaz

standing up from the scuffle with Mr. Murrieta and Agent Diaz shooting Mr. Yañez.

Therefore, Plaintiffs and this Court should have the benefit of discovery on the issue.

V. THE COMPLAINT PROPERLY STATES A CLAIM FOR ATTORNEYS’ FEES. Defendants rely on Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000), to

object to Plaintiffs’ request for attorneys’ fees “to the extent they are sought under



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Bivens.” Def. Br. at 22. The Court in Nurse, however, reversed the district court’s denial

of attorneys’ fees on Bivens claims at the motion to dismiss stage because the order was

premature. Nurse, 226 F.3d at 1004 (“[A]ppellant has not justified her prayer for

attorney's fees relating to her Bivens claims . . . However, because this litigation is in its

early stages, we reverse the district court's order denying fees as premature.”). The same

is true here.

CONCLUSION For the reasons stated above, Plaintiffs respectfully request that this Court deny

the Individual-Capacity Defendants’ Motion to Dismiss Plaintiffs’ First Amended

Complaint.

Dated: March 27, 2014 By: /s/ Robert C. Hilliard

Robert C. Hilliard /s/ Steve Shadowen Steve Shadowen Marion Reilly Daniel Gonzales Gerald Singleton

ATTORNEYS FOR PLAINTIFF


gerald singleton, state bar no. 208783 560 n. coast … · 2014-05-16 · ... hon. william q. hayes...

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