Bressi v. Napier

Bressi v. Napier, No. 4:18-cv-00186-DCB (D. Ariz., amended complaint filed July 2, 2018)

On July 2, 2018, Plaintiff Terry Bressi filed an amended complaint against Pima County Sheriff Mark Napier and other county defendants alleging that they violated his First and Fourth Amendment rights when Sheriff’s deputies arrested him at a Border Patrol checkpoint in April 2017 after refusing to answer Border Patrol’s citizenship questions.  Bressi has also lodged a federal notice of claim against the Border Patrol for the same incident.

Bressi, who has traveled the same route since 1993 from his Tucson home to his rural worksite west of Tucson, has contended many times with the abuses and excesses of the Border Patrol.  For example, Mr. Bressi previously sued another local police agency when it illegally detained him at a checkpoint erected at the direction of the Border Patrol.  See Bressi v. Ford, 575 F.3d 891, 894 (9th Cir. 2009). On April 10, 2017, Bressi was returning home from work when he passed through the Border Patrol checkpoint.  Consistent with his personal opposition to the existence of interior checkpoints, Bressi refused to answer the Border Patrol’s questions. Shortly after, the Pima County Sheriff’s deputy – who was stationed at the checkpoint under a federal grant program called Operation Stonegarden – took over the interaction with Bressi and insisted that he answer the Border Patrol’s questions. Eventually, the deputy arrested Bressi and placed him in handcuffs, purportedly because Bressi had “obstructed” the highway.

The lawsuit alleges that the deputy retaliated against Bressi for exercising his First Amendment right not to answer Border Patrol’s questions. Additionally, the lawsuit alleges that the pervasive presence of local law enforcement at the Border Patrol checkpoint materially altered the nature of the checkpoint itself, rendering the whole checkpoint unconstitutional under the long-standing Fourth Amendment principle that permanent checkpoints are permitted only for limited immigration-related purposes and not for the “general interest in crime control.”  As of November 2018, the lawsuit is entering the discovery phase of litigation.

Counsel: Ralph E. Ellinwood PLLC; the ACLU of Arizona

Contact: Billy Peard | ACLU Arizona | bpeard@acluaz.org

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AIC v. DHS

American Immigration Council et al. v. U.S. Department of Homeland Security et al., No: 1:17-cv-02142 (D.D.C., filed Oct. 17, 2017)

This lawsuit involves the Department of Homeland Security’s (DHS) failure to conduct an adequate search for and disclose records responsive to Plaintiffs’ 2012 and 2017 Freedom of Information Act (FOIA) requests, which sought documents pertaining to DHS’ policy and/or practice of permitting Customs and Border Protection (CBP) agents to provide interpretation services to local law enforcement and to respond to 9-1-1 calls. Most documents that Defendants did produce in response to the FOIA requests were unjustifiably redacted.

Due to Defendants’ deficient and unlawful FOIA responses over a five-year period, on October 17, 2017, Plaintiffs filed suit against DHS under the FOIA seeking to compel the production of records concerning (1) the use of CBP personnel to provide interpretation and/or translation services to local, state, or other federal law enforcement agencies, and (2) the participation of CBP personnel in 911 dispatch activities.

The case is currently pending.

Counsel: Gibson, Dunn & Crutcher LLP | American Immigration Council | Northwest Immigrant Rights Project

Contact: Kristin Macleod-Ball | AIC | kmacleod-ball@immcouncil.org

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Gabriel Gomez Maciel v. Mylissa Coleman, in her official and individual capacities; City of Spokane

Gabriel Gomez Maciel v. Mylissa Coleman, in her official and individual capacities; City of Spokane, No. 2:17-cv-00292 (E.D. Wa. filed August 21, 2017)

On August 24, 2014, Gabriel Gomez Maciel was driving to church when his pickup truck was struck by a minivan. Mylissa Coleman, who at the time was working as a police officer for the City of Spokane, arrived at the scene of the accident to investigate, and contacted the Border Patrol to ask whether the agency had any interest in Gomez. Coleman contacted the Border Patrol solely on the basis of Gomez’s race and ethnicity.

Even though Gomez had been injured in the accident, Coleman did not ask if he needed medical assistance. Even after she completed her investigation of the accident and cited the minivan driver, Coleman continued to detain Gomez Coleman’s continued detention of Gomez was not justified by reasonable suspicion, much less probable cause. Eventually, Border Patrol agents arrived and transferred Gomez to the Tacoma immigration detention center, where he remained for one month until he was able to post bond.

On August 21, 2017, the Northwest Immigrant Rights Project filed a complaint in the United States District Court in the Eastern District of Washington against Mylissa Coleman and the City of Spokane pursuant to42 U.S.C. § 1983 and Article 1, § 7 of the Constitution of the State of Washington. Gomez alleges that he suffered substantial physical, emotional, and economic harm as a result of his unlawful detention.

On November 13, 2017, the parties notified the Court that the case had settled. As part of the settlement agreement, the parties agreed to a number of conditions. The City of Spokane agreed to modify its policies to clarify that police officers “shall not contact, question, delay, detain, or arrest an individual [because] s/he is suspected of violating immigration laws.” The City has also agreed to provide training to City police officers regarding the policy change. As part of the settlement, the City also agreed to pay a total of $49,000 in damages and fees.

Rios-Diaz, et al. v. Colonel Tom Butler, Montana Highway Patrol, et al.

Rios-Diaz v. Montana Highway Patrol, No. 13-CV-77 (D. Mont. 2014)

On October 7, 2013, the Montana Immigrant Justice Alliance (“MIJA”) and four representative plaintiffs filed a lawsuit in the U.S. District Court for the District of Montana against Colonel Tom Butler, sued in his official capacity as acting Chief Administrator of the Montana Highway Patrol, and Attorney General Tim Fox, sued in his official capacity as head of the Montana Department of Justice.

The lawsuit alleges that Montana Highway Patrol has a policy and practice of seizing Latino drivers or passengers, that a patrol officer believes may be in the country without authorization, for a prolonged period of time–often between forty minutes to two hours. The sole basis for detaining these individuals is to make contact with the Department of Homeland Security (“DHS”) to ascertain their immigration status and determine if an immigration enforcement officer wishes to assume custody of them.

On April 2, 2015, a final judgment was entered by U.S. District Court Judge Dana L. Christensen, approving an Offer of Judgment provided by Defendants and accepted by Plaintiffs. The settlement requires adherence to a new policy clarifying that Montana State’s Highway Patrol will not stop or prolong detention for purposes for verifying immigration status, even if requested to do so by CBP or ICE. In addition, the judgment also requires, among other things, training for MHP officials as to the new policy, requires MHA to collect data on all traffic stops anytime MHP contacts DHS and requires MHP to submit annual reports regarding racial profiling.

Counsel: Shahid Haque-Hausrath | Border Crossing Law Firm, P.C.

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Martinez-Castro, et al. v. Village of Wakeman, et al.

Martinez-Castro, et al. v. Village of Wakeman, et al., U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:12-cv-2364)

In 2012, ABLE filed a federal court complaint on behalf of two Hispanic married couples from Norwalk, Ohio.  The married couples, traveling in the same car and returning from work at a local nursery, were stopped by the Wakeman Police Department early one morning.  Without reasonable suspicion or cause, the Wakeman police officer contacted the U.S. Border Patrol.  When Border Patrol agents arrived at the scene, they proceeded to interrogate and verbally harass the occupants of the car.  The individuals were aggressively removed from the car, handcuffed and taken to the Sandusky Bay Station.  At the station, the individuals were then placed in a room where they were harassed and interrogated by ten to twelve different agents over the course of the day.

The complaint filed against the Village of Wakeman and the U.S. Border Patrol alleges claims under the Fourth Amendment, the Equal Protection Clause, Title VI of the Civil Rights Act, Bivens claims against the individual Border Patrol agents and claims pursuant to the Federal Tort Claims Act.  The complaint alleges that the U.S. Border Patrol and the Wakeman Police Department have engaged in illegal profiling of Hispanics and seeks injunctive relief to prohibit the use of race as a motivating factor in stops and detentions.

Following extensive discovery, the court declined to dismiss all but one of Plaintiffs’ claims, finding that they stated a claim for relief and also that they satisfied the pleading standard set out in Ashcroft v. Iqbal, 556 U.S. 662, 678–89 (2009). Subsequently, the parties entered into settlement discussions and reached a resolution of the case in early 2014 in which each of the plaintiffs received $7,000.00 plus an additional amount in attorneys fees.

Ohio State University Moritz College of Law Civil Clinic and Advocates for Basic Legal Equality v. U.S. Customs and Border Protection

Ohio State University Moritz College of Law Civil Clinic and Advocates for Basic Legal Equality v. U.S. Customs and Border Protection, U.S. District Court, Southern District of Ohio, Eastern Division (S.D. Ohio; 2:14-cv-2329), transferred to U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:15-cv-833)

The Ohio State University College of Law Civil Clinic and ABLE filed a FOIA request with U.S. Customs and Border Protection on August 18, 2014.  The requested documents focus on enforcement efforts of the Sandusky Bay Station (Ohio) of the U.S. Border Patrol, including apprehension and arrest records; records relating to cooperation between Border Patrol and local police; and records of any civil rights investigations against the Border Patrol.  When no timely response was received, the requesters filed a lawsuit against CBP in the S.D. Ohio, Eastern Division (Columbus).  The U.S. Attorney filed a motion to transfer the case to the Northern District of Ohio; the Plaintiffs opposed the motion.  The motion was granted and the case was transferred to Judge Jack Zouhary in the Northern District based on his prior handling of a series of cases against the Sandusky Bay Station of the U.S. Border Patrol.  The Defendant has, as of October 12, 2015, started a phased delivery of requested information.

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 DHS, CBP, and certain named officials for their interference with the plaintiffs’ right to protest, observe, and record activity at the U.S. Border Patrol’s checkpoint on Arivaca Road near the Arizona-Mexico border. Although CBP claims that this checkpoint is temporary, it has been in continuous existence for twelve years. Many Arivaca residents must drive through the checkpoint every day to reach jobs, schools, and shops. Plaintiffs are members of a community organization called People Helping People (PHP), which organized a “checkpoint monitoring campaign” in response to 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 DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties.

As part of the checkpoint monitoring campaign, PHP volunteers stood on a public right-of-way adjacent to the Arivaca Road checkpoint and took notes, photographs, and video recordings of the actions of Border Patrol agents at the checkpoint. Other individuals, also standing on the public right of way, held up signs protesting the checkpoint. Soon after PHP began their monitoring activity, Border Patrol agents ordered the volunteers and protestors to move to a spot much farther away, making it virtually impossible for the monitors to observe what was happening at the checkpoint. The Border Patrol agents enlisted the assistance of a local law enforcement officer, who also ordered the PHP monitors to move to another spot. The monitors and protestors complied with this order.

Plaintiffs brought this suit, alleging that Defendants interfered with their First Amendment right to protest, observe, and record law enforcement activity in their community. They seek an injunction that would prevent Border Patrol agents from restricting their monitoring activity on the public right of way.

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

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, remanding the case to allow discovery to proceed. As of March 2019, discovery is ongoing.

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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

Muniz-Muniz, et al. v. United States Border Patrol, et al.

Muniz-Muniz, et al. v. United States Border Patrol, et al., No. 09-02865 (N.D. Ohio, filed Dec. 10, 2009); No. 12-4419 (6th Cir.)

Fifteen individuals and two workers’ rights organizations brought this lawsuit to challenge Border Patrol (BP) agents and three local law enforcement agencies and their officers for their systematic racial profiling of Hispanic residents in three Ohio towns.  Plaintiffs have been stopped and questioned about their immigration status while driving, pumping gas, or walking their children home from school.  Plaintiffs allege that BP agents engaged in a pattern or practice of initiating these stops solely on the basis of their Hispanic appearance and did not have any reasonable suspicion or probable cause to suspect that they were present without authorization when they did so.  Additionally, the suit alleges that BP encouraged local law enforcement agencies to profile Hispanics and detain them for BP.

There have been considerable developments in this case since the original complaint was first filed in December 2009.  The parties have completed discovery; Plaintiffs have dismissed without prejudice their claims for monetary damages and claims against the federal agents in their individual capacity; and Plaintiffs have settled their claims against the three local law enforcement agencies for damages, attorney fees, and the adoption of non-discriminatory policing policies.  Additionally, Plaintiffs successfully appealed the lower court’s dismissal for lack of jurisdiction (sovereign immunity) to the Sixth Circuit Court of Appeals.  In its December 2013 decision, the Sixth Circuit reversed and remanded the district court’s holding, concluding that § 702 of the Administrative Procedures Act conferred jurisdiction upon the court to consider the remaining claims in the suit—all non-monetary in nature—without being limited by the requirements established by § 704 of the Act.

Back in district court, Judge Jack Zouhary denied plaintiffs’ motion to compel discovery related to the use of racial slurs by Border Patrol. The court also refused to let plaintiffs add two Federal Tort Claims Act (FTCA) cases to the suit, which had been separately filed against the United States regarding the conduct of BP agents.

On February 24, 2016, Judge Zouhary found in favor of the defendants on all claims. The court held that plaintiffs failed to prove a Fifth Amendment violation of equal protection; that anecdotal evidence proffered by plaintiffs failed to amount to a “pattern or practice” of racially profiling Hispanics; and that Border Patrol agents’ use of the word “wetbacks” merely represented “isolated instances of poor judgment.” Furthermore, Judge Zahoury held that plaintiffs failed to establish a Fourth Amendment violation of the right against unreasonable search and seizure. Despite plaintiffs’ testimony that they believed that they were unable to leave during police interrogations, the court found that, in all cases, the encounters either did not constitute seizures or were lawful interrogations or seizures based on reasonable suspicion or probable cause.

Plaintiffs filed a notice of appeal to the Sixth Circuit on April 19, 2016. The Sixth Circuit affirmed the district court’s decision on August 24, 2017.

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Counsel: Advocates for Basic Legal Equality, Inc. | Murray & Murray Co., L.P.A.

Contact: Mark Heller | ABLELAW | 419.255.0814 | mheller@ablelaw.org

Vargas Ramirez v. United States of America

Vargas Ramirez v. United States of America, No. 2:13-cv-02325 (W.D. Wash., filed Dec. 27, 2013)

Mr. Gustavo Vargas Ramirez brought this Federal Tort Claims Act lawsuit against the United States for false arrest, false imprisonment, negligent and intentional infliction of emotional distress, and abuse of process arising from his unjustified arrest at the hands of Border Patrol (BP).

On June 23, 2011, Mr. Vargas was stopped by the Anacortes, Washington police, allegedly for failing to use his turn signal. He provided a valid license, registration, and proof of insurance. Despite this, the police officer called BP to check on Mr. Vargas’s immigration status. After failing to find any immigration or criminal history on Mr. Vargas, the BP agent asked the police officer to allow him to speak to Mr. Vargas directly, but Mr. Vargas refused to answer any of the agent’s questions without talking to a lawyer. The agent then instructed the police officer to detain Mr. Vargas, despite lacking any legal basis for doing so. Based on this request, the police officer transported Mr. Vargas, in handcuffs, to the city jail, where he waited in a cold prison cell until a BP agent arrived and took him to a nearby BP station. Once at the station, Mr. Vargas continued to refuse to answer any questions without a lawyer. The agents on duty ignored his efforts to assert his rights and attempted to pressure him into signing various documents without first explaining their contents to him. Mr. Vargas was eventually transferred to the Northwest Detention Center, where he was detained for almost ten weeks. His case was subsequently administratively closed.

The BP report of what transpired on June 23, 2011 contains blatant misrepresentations that purport to provide a legal justification for BP’s decision to have Mr. Vargas arrested, showing the agents involved knew their conduct was unlawful. The report wrongly states, for instance, that the Anacortes police officer called BP for help with interpretation issues and that a BP agent arrived at the scene of the traffic stop, where he took custody of Mr. Vargas after the latter admitted that he had been born in Mexico. Such an interaction never happened.

Mr. Vargas first filed formal administrative complaints against both the Anacortes Police Department and Border Patrol in mid 2013. He settled his claims against the Anacortes Police Department without going to trial. His complaint against Border Patrol went unanswered, however, and Mr. Vargas filed a complaint in the U.S. district court for the Western District of Washington seeking damages for the violations BP inflicted upon him. Following Mr. Vargas’s defeat of the government’s motion to dismiss or for summary judgment, the parties undertook discovery, after which they filed cross motions for summary judgment. On March 23, 2015, the district court entered an order granting Mr. Vargas’s motion for summary judgment with respect to the claims of false arrest and false imprisonment, and dismissed the secondary claims. The parties reached a settlement, agreeing to damages in the amount of $10,000. As a result of the settlement the district court issued a final order dismissing the claim on March 31, 2015.

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Counsel: Northwest Immigrant Rights Project | Bean Porter Hawkins PLLC

Contact: Matt Adams | NWIRP | 206.957.8611 | matt@nwirp.org

Ramirez-Rangel, et al. v. Kitsap County, et al.

Ramirez-Rangel, et al. v. Kitsap County, et al., No. 12-2-09594-4 (Wash. Super. Ct., filed Jan. 31, 2012, decided Aug. 16, 2013)

Three individuals brought this lawsuit against Kitsap County and two Kitsap County deputy sheriffs for false arrest and violations of the Washington State Constitution.

Plaintiffs Samuel Ramirez Rangel, Leticia Gonzalez Santiago, and Jose Solis Leon were harvesting shellfish one February evening in 2010 when two Kitsap County deputy sheriffs noticed them speaking Spanish. The deputies waited for the group to exit the beach and followed their truck, eventually pulling them over to allegedly investigate a defective headlight and their shellfish licenses. Although the deputies resolved all issues relating to the headlight and shellfish, they prolonged the traffic stop to question the plaintiffs about their immigration status. The deputies proceeded to call U.S. Border Patrol to inform them they had stopped some individuals they suspected of having immigration issues, offering to detain them until Border Patrol could arrive. The deputies then called for additional law enforcement assistance and, after ordering the plaintiffs to sit in their truck, the officers kept the truck surrounded until Border Patrol agents arrived at the scene.

The court dismissed the false arrest claim but held that local law enforcement officers violate Article 1, Section 7 of the Washington State Constitution when they prolong a detention to question individuals about their immigration status, citizenship status, and/or country of origin. The court clarified that even when officers have reasonable suspicion or probable cause to seize someone for a legitimate reason unrelated to immigration enforcement, they are constitutionally forbidden from extending a detention to interrogate that detainee as to her or his immigration status once the officers have decided not to arrest that person for the original offense.

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Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington State | Stoel Rives LLP

Contact: Matt Adams | NWIRP | 206.957.8611 | matt@nwirp.org