Hodgers-Durgin v. De La Vina

• Decision Date: 24 June 1999
• Docket Number: No. 97-16449,HODGERS-DURGIN,97-16449
• Citation: 199 F.3d 1037
• Parties: (9th Cir. 1999) PANCHITA, individually and on behalf of all others similarly situated; ANTONIO V. LOPEZ, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. GUSTAVO DE LA VINA, in his official capacity; RONALD E. SANDERS, in his official capacity; STEPHEN NORMAN, in his official capacity, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1037

199 F.3d 1037 (9th Cir. 1999)

PANCHITA HODGERS-DURGIN, individually and on behalf of all others similarly situated; ANTONIO V. LOPEZ, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. GUSTAVO DE LA VINA, in his official capacity; RONALD E. SANDERS, in his official capacity; STEPHEN NORMAN, in his official capacity, Defendants-Appellees.

No. 97-16449

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 24, 1999--San Francisco, California

Filed December 21, 1999

Armand Salese, Salese and McCarthy, Tucson, Arizona, and William E. Morris, Arizona Justice Institute, Tucson, Arizona, for the plaintiffs-appellants.

Robert M. Bombaugh, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CV-95-00029-JMR

Before: Chief Judge Procter Hug, Jr., Joseph T. Sneed, Stephen Reinhardt, Melvin Brunetti, Stephen S. Trott, Pamela Ann Rymer, Thomas G. Nelson, Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman, and William A. Fletcher, Circuit Judges.

W. FLETCHER, Circuit Judge:

The question in this case is whether two individual plaintiffs may bring a class action for equitable relief against officials of the United States Border Patrol who supervise operations along the Mexican border in the state of Arizona. Plaintiffs, who each were stopped once by Border Patrol agents, contend that the stops violated the Fourth Amendment's prohibition against unreasonable seizures. They seek equitable relief, asking in their complaint for a declaratory judgment that "the roving patrol operations [of the Border Patrol] involve systemic violations of the Fourth Amendment to the United States Constitution," and for an injunction "prohibiting Defendants from further ordering, directing, sanctioning or knowingly permitting such unconstitutional practices" and requiring defendants "to prescribe and implement measures sufficient to prevent resumption of those practices."

The district court granted summary judgment to defendants on the ground that plaintiffs do not have standing to seek equitable relief requiring the Border Patrol to change its practices. We review de novo a grant of summary judgment. See Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 369 (9th Cir. 1998). We agree with the district court that plaintiffs have shown insufficient likelihood of future injury to warrant equitable relief. We therefore do not reach questions involving the propriety of class certification.

I

Plaintiff Antonio V. Lopez is a United States citizen who lives in Tucson, Arizona. Mr. Lopez describes himself as having what he calls a typically Hispanic appearance--black hair, dark skin and dark eyes. He drives approximately 400 to 500 miles a week and travels two or three days a week on interstate highway I-19 between Tucson and the border town of Nogales. Despite the fact that Mr. Lopez sees Border Patrol agents every time he drives on I-19, he has been stopped only once in a ten-year period.

In January, 1995, Mr. Lopez was driving from Nogales to Tucson at approximately 5:30 in the evening. He had his cruise control set at 65 miles per hour when a Border Patrol agent passed him, pulled into his lane in front of him, and slowed to 50 miles per hour. Mr. Lopez moved into the left lane and passed the Border Patrol agent and another vehicle. The agent passed the other vehicle, pulled in behind Mr. Lopez, turned on his headlights, and closely followed Mr. Lopez for five minutes before stopping him. The Border Patrol agent spoke to Mr. Lopez in Spanish, asking where he had come from and where he was going. After Mr. Lopez answered, the agent asked whether he could look in the trunk, and Mr. Lopez consented to the search. When the agent found nothing, Mr. Lopez was allowed to continue on his way.

Plaintiff Panchita Hodgers-Durgin is a United States citizen who has lived in Rio Rico, Arizona, since 1985. Ms. Hodgers-Durgin was born in Mexico, but is of English ancestry and has ash blond hair, light skin, and light brown eyes. Ms. HodgersDurgin testified that she drives on I-19 from Rio Rico to Nogales, a distance of approximately 15 miles, at least four or five times a week. According to Ms. Hodgers-Durgin, whenever she travels on I-19 she sees Border Patrol agents "all over the place." Ms. Hodgers-Durgin has been stopped by Border Patrol agents only once in approximately ten years.

At 1:00 a.m. on October 8, 1994, Ms. Hodgers-Durgin was returning on I-19 from Nogales to Rio Rico when her car began to malfunction, slowing down of its own accord from 55 to 40 miles an hour. She pulled off at the next exit and when she stopped at the stop sign marking the end of the exit ramp her car stalled. While her car was stalled, a Border Patrol agent who had followed her when she left the highway pulled up behind her. Ms. Hodgers-Durgin managed to restart her car and drive slowly across the highway overpass. She was then stopped by the Border Patrol agent. The agent approached Ms. Hodgers-Durgin's car and asked whether she was a United States citizen. Ms. Hodgers-Durgin replied that she was a citizen and asked why she had been stopped. The agent answered that she had slowed down as she approached his car and had not looked over as she passed. The agent asked what she had in the car and requested that she open the hatchback. Ms. Hodgers-Durgin complied. When the agent found nothing, he returned to his patrol car and drove away.

Mr. Lopez and Ms. Hodgers-Durgin seek equitable relief on behalf of a class defined as

all persons who have been, are, or will be traveling at night by motor vehicle on the highways of the State of Arizona, within the counties of Cochise, Graham, Greenlea, Maricopa, Pima, Pinal, Santa Cruz and Yuma; and all persons who are of Latin, Hispanic or Mexican appearance who have been, are, or will be traveling by motor vehicle on the highways of the State of Arizona, within the counties of Cochise, Graham, Greenlea, Maricopa, Pima, Pinal, Santa Cruz and Yuma.

Mr. Lopez seeks to represent a sub-class of drivers of Hispanic, Latin or Mexican appearance. Ms. Hodgers-Durgin seeks to represent a sub-class of night-time drivers.

II

Though the facts here are substantially different, the most analogous case is City of Los Angeles v. Lyons , 461 U.S. 95 (1983), in which plaintiff Lyons, an African-American man, was stopped at 2:00 a.m. by Los Angeles police officers based on a burned out taillight. According to Lyons' complaint, the officers seized him without provocation and applied a "chokehold." As a result of the chokehold, Lyons lost consciousness, defecated and urinated, and suffered permanent damage to his larynx. Lyons sought an injunction barring the Los Angeles Police Department from using chokeholds except in certain restricted circumstances. The Supreme Court held that Lyons "presumably" had standing to seek damages against the officers and the City of Los Angeles, id. at 105, but that in the absence of a realistic threat of future injury Lyons could not "demonstrate a case or controversy with the City that would justify the equitable relief sought."¹ Noting that Article III "case-or-controversy considerations `obviously shade into those determining whether the complaint states a sound basis for equitable relief,' " id. at 103 (quoting O'Shea v. Littleton, 414 U.S. 488, 499 (1974), the Court concluded that even if Lyons had Article III standing to seek an injunction, the speculative nature of his claim of future injury precluded him from establishing a key prerequisite for equitable relief, "a `likelihood of substantial and immediate irreparable injury.' " Id. at 111 (quoting O'Shea, 414 U.S. at 502). The Court explained that "the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States' criminal laws in the absence of irreparable injury which is both great and immediate." Id. at 112.

A. "Case or Controversy" under Article III

We do not believe that Lyons compels a finding that plaintiffs fail to satisfy the "case or controversy " requirement of Article III. This case is notably different from Lyons in that plaintiffs did nothing illegal to prompt the stops by the Border Patrol. One could argue that the stop in Lyons was essentially a chance "encounter" between Lyons and the police,² but we believe that the Supreme Court does not see the case that way. In Lyons itself, the Court suggested that the stop was prompted by Lyons' misconduct, holding that Lyons had failed to "demonstrate a case or controversy" because he had not established "a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense[.]" Id. at 105 (emphasis added).

More recently, in Spencer v. Kemna, 523 U.S. 1, 15 (1998), the Court has characterized the denial of Article III standing in Lyons as having been based on the plaintiff's ability to avoid engaging in illegal conduct. Petitioner in Spencer argued that a challenge to a parole revocation was not moot because the revocation might be used to enhance a future criminal sentence. The Court rejected petitioner's argument in Spencer, as it had rejected a similar argument by respondents in Lane v. Williams, 455 U.S. 624 (1982):

[The argument in Lane was rejected] because it was contingent upon respondents' violating the law, get ting caught, and being convicted. "Respondents themselves are able--and indeed required by law- to prevent such a possibility from occurring." Lane, supra, at 633, n. 13. We of course have rejected analogous claims to Article III standing in other con texts.

"[W]e are . . . unable to conclude that the case-or-controversy requirement is satisfied by general...