FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

On August 10, 2015, five immigrant mothers sent administrative complaints to the Department of Homeland Security under the Federal Tort Claims Act for the abuses the women and their children had suffered while detained in ICE custody. These women, who fled their home countries due to endemic violence suffered at the hands of criminal gangs and intimate partners, sought asylum in the United States. After entering the custody of CBP/ICE, they endured deplorable detention conditions, including woefully inadequate medical and mental health care, little to no legal information as to their rights and/or fates, no educational services for the detained children, and lack of access to necessities such as food, water, clothing, and bathing facilities.

Counsel: R. Andrew Free | Barrett, Johnston, Martin & Garrison, LLC

Contact: R. Andrew Free | (615) 244-2202 | Andrew@ImmigrantCivilRights.com

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Rodriguez v. Swartz

Rodriguez v. Swartz, No. 14-02251 (D. Ariz., filed Sept. 8, 2014)

This civil rights case involves the brazen and lawless killing of a sixteen-year-old boy, J.A., by U.S. Border Patrol Agent Lonnie Swartz. On the night of October 10, 2012, J.A., a Mexican national, was peacefully walking along a street in his hometown of Nogales, Sonora, Mexico. The street on which he was walking, Calle Internacional, runs parallel to the border fence. At approximately 11:30 pm, Agent Swartz, standing on the U.S. side of the fence, opened fire. An autopsy report shows that J.A. was fatally hit with ten bullets. At the time of the shooting, no official was under any threat by J.A. or anyone else standing near him — much less in immediate danger of deadly or serious bodily harm. J.A. death was senseless, unjustified, and unlawful. Plaintiff Araceli Rodriguez filed this Bivens action for monetary damages for the killing of her youngest son, alleging claims under the Fourth and Fifth Amendments to the United States Constitution.

On July 10, 2015, the District Court granted in part and denied in part Defendant’s motion to dismiss. Disagreeing with the en banc Fifth Circuit, Chief Judge Raner C. Collins held that Rodriguez’s Fourth Amendment claim could proceed and that Agent Swartz was not entitled to qualified immunity.

In mid-September 2015, the Department of Justice charged Swartz criminally with second degree murder. Following several postponements, the Swartz criminal trial began in Tucson on March 22, 2018.  The jury found Swartz not guilty of second-degree murder on April 23, 2018, after hearing several weeks of testimony from Nogales Police Department officers, Border Patrol agents, forensics experts, and Swartz himself.  The same jury failed to arrive at a unanimous decision as to the lesser-included offense of voluntary manslaughter, leaving open the door for a future criminal prosecution of the lower-level offense.  On May 12, 2018, the U.S. Attorney Office in Tucson announced that it would re-try Swartz on the lesser charge. Swartz was subsequently acquitted of involuntary manslaughter on November 21, 2018.

In the civil case, Defendant filed a Notice of Appeal with the Ninth Circuit. Briefing was completed as of June 1, 2016 and oral argument held on October 21, 2016. The panel indicated its intent to hold its decision pending the Supreme Court’s resolution of Hernandez v. United States, which was decided on June 26, 2017.

On August 7, 2018, the Ninth Circuit, in an opinion by Judge Kleinfeld with a dissent from Judge M. Smith, affirmed the District Court’s decision denying Defendant qualified immunity, reasoning that “J.A. had a Fourth Amendment right to be free from the unreasonable use of deadly force by an American agent acting on American soil, even though the agent’s bullets hit him in Mexico.” The Court extended a Bivens remedy, finding that Plaintiff had no other adequate alternative remedy and that no “special factors” counseled hesitation in extending such a remedy. The Court did not reach the Fifth Amendment arguments but stated that, if the Fourth Amendment did not apply because J.A. was in Mexico, the Fifth Amendment’s “shock the conscience” test may still apply.

Unfortunately, on May 28, 2019, the Supreme Court granted certiorari for a second time in Hernandez v. United States, sub nom. Hernandez v. Mesa, and the court stayed Rodriguez pending the outcome of Hernandez. On February 25, 2020, the Supreme Court issued a second decision in Hernandez, holding that the Hernandez family could not rely on Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) to bring their claims. This outcome essentially foreclosed the possibility of a Bivens remedy in Rodriguez as well. As a result, the Supreme Court granted certiorari in Rodriguez, vacated the Ninth Circuit’s 2018 opinion, and remanded the case back to the Ninth Circuit for consideration in light of Hernandez. On April 7, 2020, the Ninth Circuit likewise vacated the district court’s decision and remanded the proceedings. Following the remand, the case was dismissed and is now closed.

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Contact: Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Doe v. Wolf

Doe v. Wolf, No. 4:15-cv-00250-DCB (D. Ariz., filed June 8, 2015) and Nos. 20-15741, 20-15850 (9th Cir., filed Apr. 20 & May 1, 2020)

Three individuals filed a class action suit challenging detention conditions in the Tucson Sector of the U.S. Border Patrol. The complaint alleges that the Tucson Sector Border Patrol holds men, women, and children in freezing, overcrowded, and filthy cells for days at a time in violation of the U.S. Constitution and CBP’s own policies. Detained individuals are stripped of outer layers of clothing and forced to suffer in brutally cold temperatures; deprived of beds, bedding, and sleep; denied adequate food, water, medicine and medical care, and basic sanitation and hygiene items such as soap, sufficient toilet paper, sanitary napkins, diapers, and showers; and held virtually incommunicado in these conditions for days.

The American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP represent the plaintiffs and class. Plaintiffs seek to compel the Tucson Sector to bring its detention facilities in line with Constitutional standards, including limiting the time a person may be detained in holding cells to a few hours, providing adequate food, water, and medical care, beds and bedding, access to showers and hygiene supplies, and maintaining appropriate capacity limits and temperature controls, among other reforms.

Subsequent to filing the suit, Plaintiffs sought and were granted expedited discovery, and thus were able to inspect 4 of the 8 Border Patrol facilities at issue, and were given copies of CBP video recordings of the holding cells and agency logs from these same 4 facilities dating back to the filing of the complaint. Thereafter, Plaintiffs filed a motion for sanctions over Defendants’ failure to fully comply with the expedited discovery order, which the Court granted in part.

On December 4, 2015, Plaintiffs moved for a preliminary injunction. Defendants’ moved to seal much of the evidence supporting Plaintiffs’ motion, and thus block public exposure to photographs and other revealing evidence.  On January 28, 2016, Phoenix Newspapers Inc., the parent corporation to the Arizona Republic, moved to intervene in the suit for the limited purpose of opposing Defendants’ Motion to Seal.  The Court granted the Arizona Republic’s motion and unsealed numerous documents.

In early 2016, the Court certified a class consisting of all detainees who now or in the future will be detained by the Border Patrol in the Tucson Sector. The Court also denied Defendants’ motion to dismiss with respect to the constitutional claims but did dismiss Plaintiffs’ APA claim.

In late 2016, following an evidentiary hearing, the District Court issued a preliminary injunction which held, among other things, that forcing a detainee to sleep on a concrete floor with no bedding was a violation of his or her constitutional rights. The Court ordered Border Patrol to provide sleeping mats to all individuals detained for 12 hours or more; afford individuals a means to clean themselves; provide them with toothbrushes and toothpaste; monitor cell conditions to ensure that they were sanitary and that toilets and sinks were in working condition; and adopt an enhanced medical screening form to use with all detained individuals. Both parties appealed to the Ninth Circuit. On December 22, 2017, the Ninth Circuit upheld the District Court’s decision in its entirety.

Plaintiffs’ partial motion for summary judgment was denied on March 15, 2019, with the Court ruling that all issues are best resolved at trial.

Following a seven-day trial in January 2020, the District Court granted Plaintiffs’ request for a permanent injunction finding that the conditions in detention facilities in Border Patrol’s Tucson Sector violate the U.S. Constitution. Under the court’s ruling, migrants may not be detained in these facilities for more than 48 hours, unless Border Patrol provides for their “basic human needs.” In addition to the requirements imposed under the preliminary injunction, further requirements imposed by the court after 48 hours include providing:

  • a bed with a blanket;
  • access to food that meets acceptable dietary standards and potable water; and
  • a medical assessment by a medical professional.

The court also clarified that the opportunity to shower, by definition, does not mean mere access to a “paper-shower” or “shower-wipe” and that Border Patrol must ensure that overcrowding in the detention cells does not result in migrants having to sleep in the toilet areas. On April 17, 2020, the court issued an order for permanent injunction specifying the exact terms governing how the court’s ruling will be implemented.  Defendants were given ninety days to fully comply with the court’s order.

Both parties subsequently filed notices of appeal to the Ninth Circuit. In November 2020, prior to any briefing, the parties stipulated to voluntary dismissal with prejudice of the government’s cross-appeal. In January 2021, the parties also stipulated to voluntary dismissal with prejudice of the Plaintiffs’ cross-appeal.

Counsel: The American Immigration Council, the National Immigration Litigation Alliance, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP

Contact: Mary Kenney | National Immigration Litigation Alliance |617.819.4681 |mary@immigrationlitigation.org

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FTCA Administrative Complaint by the ACLU to the Department of Homeland Security

Complaint by the ACLU to the Department of Homeland Security

Complaint by ACLU of Arizona to CBP

On May 19, 2015, the ACLU of Arizona filed two claims with the federal government under the Federal Tort Claims Act (“FTCA”) on behalf of an Arizona woman seeking monetary damages for egregious and repeated rights violations by U.S. Border Patrol agents.

The first claim arises out of an incident on May 21, 2013, in which Border Patrol agents stopped Clarisa Christiansen and her two young children without cause while the family was driving home from school.  After Ms. Christiansen demanded an explanation, the agents threatened to deploy a Taser and then threatened to cut her out of her seatbelt with a knife.  The agents subsequently slashed a rear tire and left Ms. Christiansen and her children stranded on a hot desert road with a flat tire and no explanation.

In October 2013, the ACLU submitted a complaint to DHS oversight agencies on behalf of Ms. Christiansen and four others who were subjected to unlawful “roving patrol” stops by Border Patrol.  More than a year and a half later, those agencies have yet to respond.

The second claim was filed in response to years of unauthorized and unlawful entries by Border Patrol agents onto the family’s private property west of Tucson.  On a weekly basis, Border Patrol helicopters buzz the family’s home at extremely low altitudes, causing dwellings to shake, and often disrupting the family’s sleep with deafening noise and bright lights.  Agents have also repeatedly entered the Christiansens’ property on foot and on motorized vehicles, despite numerous posted “No Trespassing” signs.

Federal law currently grants Border Patrol authority to enter onto private property within twenty-five miles of the border “to prevent illegal entry.”  Agents are further empowered to conduct interior enforcement within 100 miles of any national boundary, an area that encompasses most of the U.S. population.  As in Ms. Christiansen’s case, agents routinely ignore the legal limits of their authority in the course of these operations.

Counsel: ACLU of Arizona

Contact: James Lyall | ACLU of Arizona | 602.650.1854 | jlyall@acluaz.org

Jacobson et al. v. DHS et al.

Jacobson et al. v. DHS et al.Nos. 14-02485 (D. Ariz., filed Nov. 20, 2014) and 16-17199 (9th Cir., filed Nov. 30, 2016)

This is a First Amendment case brought against the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and certain named Border Patrol agents for their interference with Plaintiffs’ right to protest, observe, and record law enforcement activity at the U.S. Border Patrol’s interior checkpoint on Arivaca Road in Arivaca, Arizona near the U.S.-Mexico border. Although CBP claimed that the Arivaca Road checkpoint was temporary, it had been in continuous existence since 2007. Many Arivaca residents had to drive through the checkpoint every day to reach jobs, schools, doctors, and shops.

Plaintiffs are members of a community organization called People Helping People (“PHP”), which organized a “checkpoint monitoring campaign” in response to public complaints that Border Patrol agents were violating individuals’ civil rights at the checkpoint. A number of these incidents were detailed in an administrative complaint filed with the DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties.

As part of the checkpoint monitoring campaign, community volunteers stood on a public right-of-way adjacent to the Arivaca Road checkpoint and took notes, photographs, and video recordings of Border Patrol agents’ conduct to collect data on checkpoint activity and deter abuse. Other individuals, also standing on the public right of way, held up signs protesting the checkpoint. Soon after the volunteers began their monitoring activity, Border Patrol agents, with the assistance of local law enforcement, ordered the monitors to move to a spot much farther away from the checkpoint and forbade the monitors from entering the area immediately surrounding the checkpoint. The agents eventually cordoned off this area, unilaterally deeming it “the enforcement zone.” Under threat of arrest, the monitors and protestors complied with the agents’ order to relocate. From outside the enforcement zone, however, it was virtually impossible for the monitors to observe agents’ conduct at the checkpoint.

Plaintiffs brought this suit, alleging that Defendants interfered with their First Amendment right to protest, observe, and record law enforcement activity at the checkpoint, as well as retaliated against them for engaging in constitutionally protected activity. Plaintiffs sought an injunction that would prevent Border Patrol agents from restricting their monitoring activity on the public right of way near the Arivaca Checkpoint.

In January 2015, Plaintiffs moved for a preliminary injunction. After oral arguments in April, the court denied Plaintiffs’ motion in September 2015. Defendants then moved to dismiss or, in the alternative, for summary judgment. In September 2016, the presiding magistrate judge granted Defendants’ motion and entered judgment against Plaintiffs, holding that the Arivaca checkpoint was a nonpublic forum and that the restriction placed on Plaintiffs’ speech was a valid “time, place, and manner restriction.”

Plaintiffs appealed in November 2016. Briefing was completed in August 2017 and oral argument held in December 2017, in San Francisco.

On February 13, 2018, the Ninth Circuit vacated the district court’s grant of summary judgment to Defendants, concluding that the limited record before the district court did not permit it to conclude that the enforcement zone was a nonpublic forum or, if it was, whether the government satisfied the requirements for excluding Plaintiffs from a nonpublic forum. The Ninth Circuit then remanded the case to allow discovery to proceed.

On July 15, 2020, Plaintiffs moved for sanctions on the basis of Defendants’ spoliation of relevant evidence and submission of a declaration without the requisite personal knowledge. After briefing and oral argument, the magistrate judge denied Plaintiffs’ motion for sanctions without prejudice.

On June 14, 2021, the parties filed a joint stipulation to dismiss the case with prejudice. The case is now closed. At the end of July 2021, the Arivaca Checkpoint was dismantled.

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Counsel: ACLU of Arizona, ACLU of San Diego and Imperial Counties, and Covington and Burling.

Contact: Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Castro Romo v. United States of America

Castro Romo v. United States of America, No. 4:12-041 (D. Ariz. Feb. 6, 2015)

On February 6, 2015, the district court awarded the plaintiff, Jesus Castro Romo, $497,943 as damages for injuries he suffered when he was shot by a Border Patrol agent. Following a five day trial, the court found that the Border Patrol agent, who was on horseback, caught up with Mr. Castro and others as they were walking through the Arizona desert. Mr. Castro ran from the agent, who pursued him. Upon catching up to him, the agent threatened Castro, yelled obscenities at him, hit him with the horse’s reins, had the horse poke him from behind, and ultimately shot Castro in his lower back. The court credited Mr. Castro’s version of events and rejected as less credible the agent’s version that Castro was about to throw a rock at him—both because the agent changed his story over time and also because the agent previously had been convicted of taking a bribe while working for the Border Patrol.

Based upon these facts, the court concluded that the agent had committed an intentional battery under Arizona law; that his use of a gun constituted the use of deadly force; that he was not justified in using deadly force; and that the unresolved question of whether Castro had been operating as a “coyote” did not change the fact that it was unreasonable for the agent to use deadly force under these circumstances. The court considered Castro’s action in running from the agent and reduced the damage award by 10%.

The decision sets out in detail the evidence supporting the various types of damages and the court’s calculations of these damages, including past and future medical and psychiatric expenses, economic damages, and pain and suffering. On March 5, 2015, Mr. Castro filed a motion requesting that the court amend its findings of fact and conclusions of law and enter a new judgment increasing the amount of damages awarded. On July 21, 2015, the court agreed to recalculate Mr. Castro’s damages for future pain and suffering and loss of enjoyment of life to account for the effect of inflation. The court increased the original damages award by nearly $20,000 to a new total of $516, 320.82.

Counsel: Risner and Graham

Contact: William J. Risner | (520) 622-7494

Complaint by the ACLU to the Department of Homeland Security Denouncing Interior Checkpoint Abuses

Complaint by ACLU of Arizona and ACLU Border Litigation Project to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties Denouncing Interior Checkpoint Abuses

On January 15, 2014, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties concerning abuses committed by Border Patrol agents at interior vehicle checkpoints in southern Arizona.  The complaint was submitted on behalf of 15 U.S. citizens, aged 6-69 years old, and detailed 12 incidents in which their rights were violated when they were stopped at 6 checkpoints over a period of a year and a half.

The complaint calls for the investigation of all of the incidents identified; a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years; a thorough review of Border Patrol checkpoint policies and practices to ensure that operations are in fact limited to briefly verifying citizenship and that agents are receiving guidance regarding the limits of their authority; and a review of all policies and procedures related to service canines, in light of widespread reports of “false alerts” by the dogs.

Counsel: ACLU of Arizona

Contact: James Lyall | ACLU of Arizona | 602.650.1854 | jlyall@acluaz.org