Hodgers-Durgin
Hodgers-Durgin v. de la Vina
Opinion
Dissenting Opinion
Sneed, J.
Dissenting:
I respectfully dissent.
The bedrock of my dissent lies in the following declaration from Lewis v. Casey, 518 U.S. 343 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996), in which a class consisting of prison inmates sought an injunction mandating detailed, systemwide changes in ADOC’s 2 prison law libraries and in its legal assistance programs. 3 Id. at 349 , 116 S.Ct. at 2179 .
Id. at 349-50 , 116 S.Ct. at 2179 .
In the case currently before us, class plaintiffs Durgin and Lopez represent an improperly multitudinous class that has neither been actually harmed nor faced with a threat of imminent harm. Thus, the proposed class runs afoul of the dictates of Lewis and its requirement of a threat of imminent harm.
Despite the Lewis holding, Durgin and Lopez now seek to represent two groups of uninjured persons, each numbering in the hundreds of thousands, if not millions. Dur-gin and Lopez describe the classes they seek to represent as follows:
Third Amended Complaint ¶ 12 (emphasis added).
A cursory glance at Rule 23 of the Federal Rules of Civil Procedure easily reveals that plaintiffs Durgin and Lopez cannot represent properly each of the individuals embraced in the…
Lead Opinion
Rhoades, J.
Opinion by Judge RHOADES; Dissent by Judge SNEED.
I. Overview
Plaintiffs, suing on behalf of themselves and a class of persons, allege that the United States Border Patrol routinely stops Arizona motorists without reasonable suspicion, in violation of the Fourth Amendment. Plaintiffs have sued three supervisory officials of the Border Patrol.
Plaintiffs appeal from the district court’s denial of class certification and grant of summary judgment in favor of Defendants. For the reasons stated below, we reverse in both respects and remand for further proceedings.
II. Background
United States Border Patrol agents patrol the highways of southern Arizona in an effort to enforce the nation’s immigration laws. Border Patrol agents often stop motorists and question them. These stops are “seizures” within the meaning of the Fourth Amendment. See United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981); Nicacio v. United States INS, 797 F.2d 700, 702 (9th Cir.1986).
Plaintiff Panchita Hodgers-Durgin, an American citizen, lives in southern Arizona and commutes on its highways. She left a friend’s house late one night and drove home. While enroute, she passed a…