Jose Chavez v. James Ziglar

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE CHAVEZ, husband and MARIA  ELENA CHAVEZ, wife, Plaintiffs-Appellees, v. No. 10-17659

UNITED STATES OF AMERICA,

D.C. No. Defendant,  4:01-cv-00245- and FRZ-JJM

JAMES W. ZIGLAR; DAVID AGUILAR; OPINION

RALPH HUNT; ALVARO OBREGON;

FELIX CHAVEZ; MICHAEL CAMPBELL,

Border Patrol Agents, Defendants-Appellants.  Appeal from the United States District Court for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted January 10, 2012—San Francisco, California

Filed June 20, 2012

7279 7280 CHAVEZ v. UNITED STATES Before: J. Clifford Wallace and Milan D. Smith, Jr., Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Jed S. Rakoff; Concurrence by Judge Wallace

*The Honorable Jed S. Rakoff, Senior District Judge for the U.S. Dis- trict Court for Southern New York, sitting by designation. 7282 CHAVEZ v. UNITED STATES

COUNSEL

Barbara Herwig and Teal Miller (argued), Civil Division, Department of Justice, for the defendants-appellants.

Armand Salese (argued) and…

Opinion by Judge JED S. RAKOFF; Concurrence by Judge WALLACE.

OPINION

Between 1995 and 2001, plaintiffs Jose and Maria Elena Chavez operated a shuttle service between Sasabe, Arizona and Tucson, Arizona. Plaintiffs allege that Border Patrol agents stopped their shuttle repeatedly and in violation of their Fourth Amendment rights. Based on these allegations, the plaintiffs bring claims not only *1106 against the agents who stopped them, but also against supervisors who they claim reviewed and directed the stops. We hold that plaintiffs’ eonclusory allegations fail to state a claim against all of the supervisors but one, a direct participant in the stops.

FACTUAL ALLEGATIONS

In December of 2001, Jose and Maria Elena Chavez filed a “Bivens ” action alleging, among other things, that Border Patrol agents had violated their Fourth Amendment rights. According to the complaint, the plaintiffs operated a shuttle service that, beginning in the Fall of 1995, made two or three round trips each day between Sasabe, Arizona and Tucson, Arizona. The shuttle never crossed the border with Mexico. Both plaintiffs and the majority of their passengers are Hispanic. Plaintiffs have no training in…

concurring:

I fully concur in the opinion and judgment, but I would have preferred to resolve this appeal without addressing the effect of Ashcroft v. Iqbal, 556 U.S. 662 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009), on supervisory liability in the Fourth Amendment context. This is because even under the pre-Iqbal standard described in Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991), plaintiffs’ claims meet the same fate described in the panel’s opinion for substantially the same reasons. Once we strip away plaintiffs’ conclusory allegations as mandated by the section of Iqbal addressing general pleading standards, 556 U.S. at 678-79 , 129 S.Ct. 1937 , there are no factual allegations alleging that any of the supervisory defendants except Hunt knew or reasonably should have known that their conduct would cause others to inflict a constitutional injury. See Larez, 946 F.2d at 646 .

Our court recently reasoned that it did not need to consider the debate regarding the extent to which the Ninth Circuit’s pre-Iqbal supervisory liability standard remains good law because the complaint’s allegations fell even under the old standard. Moss v. United States Secret Serv., 675…