Unpublished Disposition, 909 F.2d 1490 (9th Cir. 1990)

MEMORANDUM^* 

Plaintiffs bring a Bivens action, see Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the defendants Carl Reidinger, John Poole, and Bruce Haakedahl, Border Patrol officials, for alleged violations of plaintiffs' constitutional rights.

Reidinger, Chief Patrol Agent of Livermore Sector, and Poole, Patrol Agent in Charge of the Fresno Border Patrol Station, Livermore Sector, are alleged to have violated the fourth amendment rights of plaintiffs' Tony Velasquez, Sallie Velasquez, Cecilia Martinez, Mary Lou Garza, Irma Beltran, and Terry Baca 1) by establishing a policy of engaging in unconstitutional bar raids in cooperation with other law enforcement agencies or 2) by setting in motion the extensive bar raid in Sanger, California. Reidinger and Poole had no personal contact or involvement with the plaintiffs during the raid nor with the raid itself, although they authorized Border Patrol participation. Of the six plaintiffs, apparently only two had any contact with a Border Patrol agent.

Poole is also alleged to be liable for constitutional violations resulting from the inadequate training or supervision of Border Patrol agents who participated in the bar raid in Sanger.

Haakedahl, Agent in Charge of the Salinas Station, Livermore Sector, is alleged to have violated the fourth amendment rights of plaintiffs' Jose Luis Chavez and Francisco Amador Varela by the inadequate training or supervision of the Border Patrol agents under his command, who arrested Varela and Chavez in Watsonville and Santa Cruz, respectively.

We do not address the issues relating to the request for injunctive relief which are scheduled for trial. Our review is limited to the district court's denial of defendant's motion for summary judgment in the Bivens action.¹  We reverse.

DISCUSSION

A denial of summary judgment may be reviewed under the collateral order doctrine, when the basis for the motion was qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). That there are also claims for equitable relief pending against these defendants does not effect our ability to review the denial of summary judgment. See Di Martini v. Ferrin, 889 F.2d 922, 924-25 (9th Cir. 1989).

Qualified immunity exists to protect officials from suit, not just from liability, and therefore insubstantial suits must be resolved as quickly as possible. See Thorsted v. Kelly, 858 F.2d 571, 575 (9th Cir. 1988). Qualified immunity attempts to balance two concerns: 1) that when government officials abuse their office, "action [s] for damages may offer the only realistic avenue for vindication of constitutional guarantees," see Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982), and 2) that damage suits against officials can entail substantial social costs, including the risk that fear of personal liability and harassing litigation will unduly inhibit officials in the discharge of their duties. See id. Therefore, although a Bivens action may provide recovery for a violation of a person's constitutional rights, " [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). The conduct need not actually have been declared unlawful, but the unlawfulness must be apparent. See F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1315 (9th Cir. 1989). "We emphasize at this point that the appealable issue is a purely legal one: whether the facts alleged ... support a claim of violation of clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 528 & n. 9 (1985)), quoted in, Manhattan Beach Police Officers Assn. v. City of Manhattan Beach, 881 F.2d 816, 818 (9th Cir. 1989)

Plaintiffs have failed to allege facts supporting 1) a violation of their "clearly established" constitutional rights, see Manhattan Beach Police, 881 F.2d at 818, and 2) the existence of a material issue of fact as to a causal connection between the violation and the defendants' conduct, sufficient to support liability, see Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986).

Reidinger, Poole, and Haakedahl did not participate directly in the complained of activity. Vicarious liability is unavailable to link the supervisors to an alleged constitutional violation; liability must be based on their own conduct. See Monell v. Department of Social Services, 436 U.S. 658, 694 & n. 58 (1978); Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986). "The causal link between the supervisors' conduct and the deprivation of a right is key because ' [a]nyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable.' " Id. at 1369 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

It would be more common for a Bivens action to be brought against the officers directly conducting the search or seizure. In that case, the causation of the complained result is clear: it is the breaking down of a door or the handcuffing of a person. Here, the plaintiffs effectively suggest two legal theories to link the supervising officials to the complained of result: 1) policymaking or setting in motion of the raid, and 2) the failure to properly supervise or train. But as Judge Hall noted in her concurrence to an earlier appeal in this case, "If, after discovery, the plaintiffs have still failed to link a defendant to the violative acts, this defendant is entitled to summary judgment on any damages claims as a matter of law." Velasquez v. Senko, 813 F.2d 1509, 1512 (9th Cir. 1987) (citing Mitchell v. Forsyth, 472 U.S. at 526) (emphasis in original). A sufficient link is lacking.

a. Set in Motion

Careful review of the record shows insufficient evidence to establish a genuine issue of material fact as to Poole's and Reidinger's causal connection to the raid. Reidinger's only connection to the raid is his discussion with Poole surrounding the decision to approve participation.

There is evidence that Poole met with Lt. Burke, of the Fresno County Sheriff's Office, and assisted in the planning of the raid to the extent of getting buses for the expected arrests and arranging schedules so Border Patrol agents would be available for night work. Lt. Burke stated that Poole knew how it was "going to go down," but also that the raid would go forward even without Border Patrol participation. Plaintiffs' counsel at oral argument, while asserting Poole knew how the raid would go, also admitted that Poole's knowledge was "ambiguous," citing only that Poole knew there would be barricades and buses used. There is no indication that Poole's discussion or understanding included that the raid would be conducted in an unconstitutional manner, if in fact it was.² 

Mass raids, although containing inherent risk of constitutional violations, can be done constitutionally and officials have an affirmative obligation to ensure that raids they or their agencies participate in are executed in a constitutional manner. See Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986) (It is the duty of INS agent to "inquire as to the nature and scope of the warrant" to be obtained by local officers for a joint operation, and " [a]n INS agent who conducts a search or makes an arrest without knowledge of the details of the warrant under which he presumes to act violates clearly established law.").

To support a claim of personal liability, " [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987) (emphasis added). The focus is not only on whether the right was "clearly established," but also implicitly on whether the defendant had knowledge that his conduct would cause the result complained of. The plaintiffs have offered insufficient evidence to create a genuine issue of material fact on whether Poole or Reidinger understood or knew that their approval would cause the complained of conduct. See Kraus v. County of Pierce, 793 F.2d 1105, 1108 (9th Cir. 1986) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)), cert. denied, 480 U.S. 932 (1987). The raid was primarily in the control of the Fresno County Sheriff's Department.

Nor is there evidence sufficient to raise a triable issue that the Border Patrol's questioning of Garcia and Martinez while they were being detained by other law enforcement officers violated a right that was clearly established at the time. Cf. Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 490-91 (9th Cir. 1986) (defendants not personally liable for failing to reach same conclusion as Court of Appeals about level of suspicion required for strip search). Whether or not the type of piggy-backing that occurred here may be held to violate the fourth amendment, there was neither Supreme Court nor Ninth Circuit authority that addressed the issue at the time defendants acted. There is, in addition, evidence that Riedinger believed that questioning the patrons while they were detained by others was lawful. Accordingly, the district court's denial of qualified immunity was incorrect on this ground as well.

While Poole and Reidinger had a duty to see that any raid their agents participated in was constitutional, neither Poole nor Reidinger were at the main briefing the night of the raid, and plaintiffs have pointed to no evidence that the raid as planned would violate clearly established rights. More than knowledge and approval of the earlier Parlier raid and Lt. Burke's statement that Poole knew "how it was going to go down" is required for personal liability. Furthermore, only two of the six plaintiffs even had definite contact with Border Patrol agents, and the evidence suggests that as to those two the brief INS questioning was done before the other law enforcement officers had completed their task, thus not being the cause of the prolonged detentions. These facts cannot support personal liability of the supervising officials.

b. Inadequate Supervision and Failure to Train

The exact contours of the duty to supervise and train have not yet been established, but there must be some causal link between the supervisor's conduct and the deprivation before liability is imposed. See, e.g., Fargo v. City of San Juan Bautista, 857 F.2d 638, 640-41 (9th Cir. 1988); Haynesworth v. Miller, 820 F.2d 1245, 1260-61 (D.C. Cir. 1987); Bergquist, supra. Cf. City of Canton v. Harris, 109 S. Ct. 1197 (1989) (municipal liability for failure to train only if "deliberate indifference"); Tanner v. Heise, 879 F.2d 572, 582-83 (9th Cir. 1989) (applying Harris) .

The only evidence on training and supervision is the testimony of Border Patrol agent Boehrn. While Boehrn is less than an expert on fourth amendment rights, his testimony established that there is a training period before and at the beginning of an agent's entry in service. After that "we constantly are receiving court decisions, new court decisions and new policy guidelines or just changes in policy." Without more in the record, we must conclude that this system of training, even if not commendably executed, precludes personal exposure for failure to train.

Boehrn's testimony fails to raise a genuine issue of material fact as to Haakedahl's supervision or training of the agents responsible for the arrest of Chavez or Varela. Haakedahl was not present when those arrests were made; he had not instructed and did not know that those arrests would be made. There is no evidence that Haakedahl knew that his agents conducted themselves in the manner alleged. Further, when Haakedahl learned of the complained confiscation of Chavez's green card, he requested a report on the incident. He also gave a verbal follow-up report to Reidinger and the agent was disciplined and ordered to return the card to Chavez.

Similarly, Poole was not present when his agents participated in the Sanger raid. He had not instructed them to conduct themselves other than constitutionally, if in fact they did, and plaintiffs have not offered evidence to raise a genuine issue of material fact regarding training or supervision by Poole

No action or omission by Haakedahl or Poole which they could know would violate a clearly established constitutional right has been identified.

CONCLUSION

Although we recognize an affirmative duty on the part of supervising officials to ensure that their agency does not participate in unconstitutional operations, plaintiffs have failed in this instance to show that the defendants caused the planning of an unconstitutional operation which would violate clearly established rights, by either setting in motion the operation or by the inadequate training or supervision of their agents. Reversed and remanded with directions that summary judgment be entered in the favor of the defendants Reidinger, Poole, and Haakedahl in their personal capacities.

REVERSED.