Guerra v. Sutton

Citation783 F.2d 1371
Decision Date28 February 1986
Docket NumberNos. 84-4207,84-4208 and 86-3536,s. 84-4207
PartiesRoselia GUERRA, Jorges Equihua, Moises Flores, Alicia Flores, Ralph Ortiz, Francisco Martinez and Rosalba Martinez, Plaintiffs-Appellants, v. Roy SUTTON, individually and in his official capacity as Chief Criminal Investigator for the Yakima, Washington office of INS; Roy C. Johnson, Paul A. Lowry, Robert J. Miller, Warren C. Goodwin, Joe A. Turner, individually and in their capacity as Border Patrol Agents; Steve Patterson, Tom DeWitt, James Robinson, and Dan Wells, individually and in their capacity as investigators for INS, Defendants-Appellees. Roselia GUERRA, Jorges Equihua, Moises Flores, Alicia Flores, Ralph Ortiz, Francisco Martinez and Rosalba Martinez, Plaintiffs-Appellants, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. Roselia GUERRA, Jorges Equihua, Moises Flores, Alicia Flores, Ralph Ortiz, Francisco Martinez and Rosalba Martinez, Plaintiffs-Appellants, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Rebecca Smith, Granger, Wash., for plaintiffs-appellants.

William H. Beatty, Asst. U.S. Atty., Spokane, Wash., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, CANBY and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Seven appellants appeal the district court's dismissal of their Bivens and Federal Tort Claims Act, 28 U.S.C. Secs. 2671-80 (FTCA), actions after a bench trial. Appellants claim that the trial court erred in holding that the federal employee defendants were immune from suit because of their reasonable reliance on the local police for warrants for searches in which the federal defendants may have participated. In addition, appellants argue that the trial court improperly failed to exercise its discretion respecting their claim for declaratory relief. Finally, appellants allege that the trial court erred in its apparent holding that the individuals' immunities precluded recovery under the FTCA. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiffs in this case are seven individuals of Hispanic ancestry who live in two different neighborhoods in Zillah, Washington. Defendants are the INS and ten INS investigators and Border Patrol Agents (collectively "INS defendants") stationed in the Yakima, Washington area. Seven of the ten defendants have more than twenty years experience with the INS and all had been trained in the law of search and seizure.

Zillah Police Chief George Bazin was concerned about the activity in the Leland Street neighborhood of Zillah, based on citizen complaints and personal observation. Bazin decided to act, but precisely what he intended to do is not clear. On August 23, 1982, Bazin sought assistance from the police of neighboring Granger, Washington, and from INS officers. He told the local INS supervisor, defendant Roy Sutton, that he believed illegal aliens were living in certain of the houses and requested the INS to "back up" the undermanned local police. Bazin assured Sutton that he would obtain an appropriate warrant. The INS had no open case files on any of the residents or residences at Leland Street and had never investigated them. Sutton agreed to help with the operation.

Sutton and defendant Robert Miller consulted their superior and were told that the INS agents could assist provided the local police had warrants. The superior also told them that in any event the INS agents were to stay on the perimeter and not to go inside the houses. These instructions were conveyed to the other INS defendants the same day.

Neither the INS nor local police tried to get any warrants, and none were in fact obtained. None of the INS defendants ever saw or asked to see a warrant.

Between 5:00 and 5:15 a.m. on August 24, with vehicle lights flashing, the local officers, the INS defendants, and an invited newspaper reporter approached and surrounded homes at 311, 313, and 315 Leland Street. The homes were entered and searched, one forcibly, although the parties After the raid at Leland Street, at least 11 officers and agents, including INS defendants Goodwin, Miller, Robinson, Patterson, and Lowry, went to a four-unit apartment complex at 504 Second Avenue, some distance away. Officers or agents approached all four apartments and questioned the residents of the only one they found occupied. No arrests were made at Second Avenue. The agents and officers encountered no resistance or attempts at flight at either location. Again, the precise details of what happened are disputed and the district court made no more specific findings.

dispute the INS defendants' degree of involvement. A number of people were arrested, including between thirteen and fifteen by the INS defendants. In the process, a number of citizens and legal aliens were briefly detained and interrogated about their citizenship. The district court explicitly declined to make more specific findings of what happened, and plaintiffs' and defendants' versions differ sharply.

The plaintiffs filed suit asserting a 42 U.S.C. Sec. 1983 claim against the Zillah and Granger police officers and a parallel Bivens-type claim against the ten INS defendants, seeking damages and declaratory relief. Plaintiffs later filed an FTCA claim against the United States based on the same events. The two actions were consolidated and set for jury trial. Just before trial, plaintiffs settled with the Zillah and Granger defendants, and the remaining parties stipulated to a bench trial on the claims against the INS defendants.

In its memorandum decision, the trial court had no difficulty finding that the rights of plaintiffs and perhaps others had been violated in the course of the operation, as there was no warrant or probable cause for one. The court found that evidence of specific actions by specific officers during the operations was far from clear, but stated: "Suffice it to say that the involvement of the [federal] government agents in conduct which might be deemed improper was minimal." There was no finding that any specific INS defendant engaged in any specific improper conduct.

The court found it unnecessary to make further findings as to the INS defendants' actions because it implicitly granted them qualified immunity. It found: "The supervisory personnel of the INS specifically inquired about warrants and were assured by the Chief of Police of Zillah that the necessary paperwork was being done and appropriate warrants would be obtained prior to any action." The district court found that the INS defendants relied on and had a right to rely on Chief Bazin's statement and would not have participated in the raid had they known no warrant had been obtained. As a result, the district court concluded, the responsibility for any rights violations lay with the local and not the federal authorities. The court made no mention in its memorandum decision of the FTCA claim or the request for declaratory relief.

On August 7, 1984, the district court entered final judgment referring only to the Bivens action. Apparently the court and all parties assumed that this judgment disposed of both the consolidated actions, and plaintiffs noticed appeal in both actions on September 6, 1984. On December 4, 1985, the district court issued an order of final judgment in the FTCA action (received by this court on December 9) and noted that the original judgment had omitted the FTCA action solely through clerical error. The court incorporated its earlier memorandum decision into the order and explained that the FTCA action was dismissed "[f]or the reasons set forth therein." Plaintiffs have also appealed the December order of judgment itself (appeal No. 86-3536 in this court). Because Nos. 84-4208 and 86-3536 are identical, we granted plaintiffs' unopposed motion to consolidate them after oral argument in 84-4208.

JURISDICTION

These are direct appeals from final judgments in a United States district court and are properly before this court under 28

U.S.C. Sec. 1291. The notices of appeal in 84-4207 (Bivens claim) and 86-3536 (second appeal of FTCA claim) were filed within 30 days of entry of their respective judgments and are therefore timely. Fed.R.App.P. 4(a)(1). The notice of appeal in 84-4208 (first appeal of FTCA claim) was filed before entry of final judgment but after announcement of the decision, and is therefore treated as timely filed after entry of judgment and on the same date (December 4, 1985). Fed.R.App.P. 4(a)(2). Although the last judgment was not filed until after the case was calendared and briefed in this court, both parties have treated it as properly on appeal. Because the district court order eliminated the jurisdictional defect, we may consider the merits of the appeal. 1

I. IMMUNITY OF THE FEDERAL DEFENDANTS

A federal officer is entitled to qualified immunity for actions taken in the course of duty unless the officer's conduct violated "clearly established" law. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). The standard is the objective reasonableness of the officer's conduct. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Thus, the INS defendants are entitled to immunity if they can prove that they acted under a reasonable (even if mistaken) belief that what they were doing was lawful. See Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1466-67 (9th Cir.1984), citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1348 (2d Cir.1972), enforcing 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

A. Standard and Scope of Review

The trial court's determination of reasonable reliance is a finding of fact, cf. Bilbrey, 738...

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