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October 13, 2005.

United States of America, Defendant.

The opinion of the court was delivered by: ELIZABETH LAPORTE, Magistrate Judge

Plaintiff Tsungai Tungwarara, an eighteen year old Zimbabwean citizen coming to the United States for the first time, arrived at San Francisco International Airport ("SFO") on January 9, 2002 with a tourist visa. She stated that she planned to visit her mother and sister in the Bay Area. After her initial immigration inspection, she was selected for a secondary inspection, which was conducted by defendant Alfert Ludwigs, an Immigration and Naturalization Services ("INS") agent.*fn1 Tungwarara contends that during this secondary inspection, Ludwigs threatened and intimidated her, eventually coercing her into signing a false statement and withdrawing her application for entry into the United States. After being detained in an INS waiting room at SFO for more than ten hours, she was handcuffed and transferred to the Oakland City Jail, where she was strip-searched pursuant to jail policy, and placed in the general jail population overnight. She was forcibly removed to Zimbabwe the next day, via Paris. Defendants claim that they excluded Plaintiff because she planned to stay in the United States to study and therefore could not enter the country on a tourist visa. Plaintiff disputes this, and her mother testified that Ludwigs made racially offensive remarks to her about aliens from African countries. Based on these events, Tungwarara filed claims against the United States for intentional infliction of emotional distress, false arrest and imprisonment, negligence, assault, battery, violation of the California Constitution, and violation of California Civil Code section 52.1(b). She also sued the United States and Ludwigs for violating her Fourth and Fifth Amendments rights. Ludwigs then filed this motion for summary judgment on the Fourth and Fifth Amendment claims asserted against him, based on qualified immunity.


  A. Qualified Immunity Standard.

  The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether Ludwigs is entitled to qualified immunity, the Court must examine "(1) whether `taken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right'; and, if a violation of a constitutional right is found, (2) `whether the right was clearly established.'" Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law[.]'" Saucier, 533 U.S. at 202 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). If Defendant had a reasonable but mistaken belief that his conduct was lawful, qualified immunity applies. Saucier, 533 U.S. at 205-6.

  In determining whether a legal proposition is "clearly established," the Court first looks to the Supreme Court, the Ninth Circuit, and local district courts. Procunier v. Navarette, 434 U.S. 555, 565 (1978); Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1995). In the absence of such binding precedent, the Ninth Circuit allows district courts to examine "whatever decisional law is available to ascertain whether the law is clearly established," including law from state courts, other circuits and other district courts. Capoeman, 754 F.2d at 1514; Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003) (quoting Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995)). B. Plaintiff's Fourth Amendment Right Was Not Clearly Established In 2002.

  The Fourth Amendment proscribes "unreasonable searches and seizures." Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995). The test of reasonableness requires courts to balance the governmental interest that justifies the intrusion and the level of intrusion into the privacy of the individual. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496 (9th Cir. 1996). Plaintiff argues that the strip search at the Oakland City Jail violated her Fourth Amendment rights because the severe level of intrusion into her privacy was not balanced by any governmental interest. Defendants deny that this "non-intrusive" search violated Plaintiff's rights. Even if the search did violate her rights, however, Ludwigs argues that he cannot be liable because (1) he did not personally conduct or order the strip search, or even make the decision to detain her at the Oakland City Jail; and (2) he is entitled to qualified immunity.

  1. Plaintiff has raised a triable issue of fact that Ludwigs set in motion events that foreseeably caused the strip search to occur.

  It is undisputed that Ludwigs knew that all aliens sent to the Oakland City Jail pending repatriation were routinely strip searched. It is also undisputed that the INS' policies strongly discourage holding non-admitted aliens in jail "absent extraordinary circumstances." See Declaration of Patrice Harper ("Harper Decl."), Ex. 11 at 2. Ludwigs argues, however, that he cannot be liable because his supervisor, Assistant Port Director Frederick Ho, made the decision to detain Tungwarara and caused her to be sent to the Oakland Jail. See Harper Decl., Ex. 5 at 154:17-155:10. It is undisputed that Ludwigs was not involved in the decision to detain Tungwarara and was not consulted about where to detain her. See Declaration of Andrew Cheng ("Cheng Decl."), Ex. F at 185:16-186:9; Reply Declaration of Andrew Cheng ("Cheng Reply Decl."), Ex. C at 22:4-23:25, 85:6-11. Nonetheless, Tungwarara asserts that Ludwigs' falsification of her sworn statement set events in motion that foreseeably led to Mr. Ho's decision to detain her in jail rather than parole her pending removal, and thus to the strip search.

  On summary judgment, the Court cannot resolve disputed issues of fact, but only determine whether, viewing all the disputed facts in the light most favorable to Tungwarara, she has raised a disputed issue sufficient to withstand summary judgment. At her deposition, Tungwarara testified that the only purpose of her trip was to visit her mother. See Cheng Decl., Ex. E at 13:4-8, 22:5. During her secondary interview, she told Ludwigs that she had traveled to San Francisco to visit her mother. Id. at 21:3-14, 25:15-19. She denied ever telling him that the intended to study at City College in San Francisco. Id. at 25:20-26:1. Although at one point Tungwarara testified that she may have mentioned to Ludwigs that she intended to study journalism and broadcasting, she did not say that she intended to do so in the United States. Id. at 85:15-21. (She is currently studying at University of Fort Hare in South Africa. See Cheng Reply Decl., Ex. A at 206:20-22.) She admitted that it was possible that, during her secondary interview, she might have told Ludwigs that she was coming to San Francisco to go to college and get a degree, but she does not recall actually telling him this. Id., Ex. A at 184:3-21.

  Plaintiff claims that Ludwigs refused to write down the answers she gave him during the secondary interview, raised his voice and "made implied verbal threats" when she insisted on telling him that the purpose of her trip was to visit her mother. Cheng Decl., Ex. E at 27:3-28:8, 33:9-34:15. Ludwigs does not even allude to this purpose in the sworn statement that he completed for her. See id., Ex. D. On the contrary, the sworn statement unequivocally contends that she had come to the United States to "go to college and get a degree." Id., Ex. D at 3. Tungwarara claims that she was not allowed to review the statement before certifying it, and only signed it because Ludwigs told her that she would be able to see her mother if she signed the document. Harper Decl., Ex. 5 at 55:8-16, 57:6-23.

  Based on the contents of that sworn statement, Tungwarara was excluded from the United States because she held a visitor visa, not a student visa. Even if she was excludable, Tungwarara could have been paroled while awaiting her return flight to Zimbabwe. However, at least in part because of the alleged misinformation in the sworn statement, Assistant Port Director Frederick Ho determined that Tungwarara was a flight risk and should not be paroled into her mother's care while awaiting removal. Cheng Reply Decl., Ex. C at 86:15-87:23. Mr. Ho testified that he decided to detain Plaintiff because she had no return ticket, had no assets in Zimbabwe, carried only thirty dollars, had a mother who already lived in the United States, and admitted in her written statement that she was coming to the United States to study and live and work; she therefore appeared to Mr. Ho to be an "intending immigrant." Cheng Reply Decl., Ex. C at 86:15-87:23. While the written statement was only one factor in his decision, Defendant did not offer any testimony on whether Mr. Ho would have made the same decision to detain Plaintiff overnight without that statement. In the absence of such evidence, the Court cannot presume on summary judgment that Mr. Ho would have made the same decision. It is undisputed that Ludwigs knew that, if Mr. Ho decided to detain Tungwarara overnight, she would be sent to the Oakland City Jail because SFO lacked proper detention facilities. Harper Decl., Ex. 5 at 177:11-178:25; Ex. 8 at 15:5-11. He also knew that, if this happened, Plaintiff would be strip searched. Id., Ex. 5 at 187:3-21; Ex. 8 at 32:22-33:7. This appears to be a sufficient causal link to at least raise a triable issue of fact for purposes of summary judgment, see Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004), although it may or may not suffice at trial.*fn2 The Court therefore must engage in the qualified immunity analysis.

  2. The strip search was unconstitutional.

  It is undisputed that the strip search here was not based on any suspicion, reasonable or otherwise, that Tungwarara was carrying hidden weapons or contraband, but rather on the policy of the Oakland City Jail to conduct routine strip searches of all detainees. In these circumstances, even "non-invasive" strip searches like the one to which Plaintiff was subjected would be plainly unconstitutional if she were a citizen or admitted alien. See Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984) (per curiam) (Fourth Amendment prohibits blanket policy of strip searching individuals charged with minor offenses absent reasonable suspicion that detainee is concealing contraband) (overruled on other grounds by Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir. 1999) (en banc)); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445-50 (9th Cir. 1991) (to determine whether search policy is constitutional, courts must balance need for the search against personal rights affected).

  The question is whether Plaintiff's status as a non-admitted alien changes the outcome of the Fourth Amendment analysis. Rights under the Fourth Amendment fall along a continuum, with United States citizens and resident aliens afforded the most protection, aliens living in the United States without permission but who have developed ties to the community somewhat less, and non-admitted aliens the least. Non-resident aliens who seek admission into the United States are subject to the "entry fiction: "`[A]lthough aliens seeking admission into the United States may physically be allowed within its borders pending a determination of admissibility, such aliens are legally considered to be detained at the border and hence as never having effected entry into this country.'" Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1099 (9th Cir. 2004) (quoting Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir. 1995) (en banc) (superceded by statute on other grounds)); see also Wong, 373 F.3d at 970-71 ("The Supreme Court has long recognized a distinction between the constitutional rights afforded those who have effected an entry into the U.S., whether legally or otherwise, and those considered never to have entered. . . . Aliens inside the U.S., regardless of whether their presence here is temporary or unlawful, are entitled to certain constitutional protections ...

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