United States District Court, S.D. California
MARIA DEL SOCORRO QUINTERO PEREZ C.Y., a Minor, and B.Y., a Minor, Plaintiffs,
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CUSTOMS AND BORDER PROTECTION OFFICE OF BORDER PATROL, JANET NAPOLITANO, THOMAS S. WINKOWSKI, DAVID AGUILAR, ALAN BERSIN, KEVIN K. McALEENAN, MICHAEL J. FISHER, PAUL A. BEESON, RICHARD BARLOW, RODNEY S. SCOTT, CHAD MICHAEL NELSON, and DORIAN DIAZ, and DOES 1-50, Defendants.
WILLIAM Q. HAYES, District Judge.
The matters before the Court are: (1) the Motion to Dismiss (ECF No. 26) filed by Defendants United States of America, United States Department of Homeland Security ("DHS"), United States Customs and Border Protection ("CBP"), and Office of Border Patrol ("OBP") (collectively "the Government Defendants"), together with Janet Napolitano, Thomas Winkowski, Alan Bersin, Kevin McAleenan, Michael Fisher, Paul Beeson, Richard Barlow, and Rodney Scott (collectively "the Supervisor Defendants"); (2) the Motion to Dismiss (ECF No. 27) filed by the Supervisor Defendants in their individual capacities and Chad Nelson and Dorian Diaz (collectively "the Agent Defendants"); and (3) the Motion for Leave to Conduct Jurisdictional Discovery filed by Plaintiffs (ECF No. 31).
On June 17, 2013, Plaintiffs Maria Del Socorro Quintero Perez ("Del Socorro"), the widow of Jesus Alfredo Yañez Reyes ("Yañez"), and CY and BY, the minor children of Yañez, commenced this action, seeking damages for the death of Yañez, as well as declaratory relief. (ECF No. 1). On January 2, 2014, Plaintiffs filed the First Amended Complaint ("FAC"), which is the operative complaint. (ECF No. 25). On February 18, 2014, the Government Defendants and Supervisor Defendants sued in their official capacities filed the pending Motion to Dismiss Plaintiffs' First Amended Complaint. (ECF No. 26). The Government and Supervisor Defendants assert that all of Plaintiffs' claims should be dismissed against them on grounds of sovereign immunity. In addition, they seek dismissal of Plaintiffs' Eighth Claim for Declaratory Judgment as moot and unripe. Finally, the Government Defendants and Supervisor Defendants seek dismissal of Plaintiffs' request for attorney's fees as unrecoverable.
On the same date, the Supervisor Defendants sued in their individual capacities and the Agent Defendants filed the pending Motion to Dismiss Plaintiffs' First Amended Complaint. (ECF No. 27). The Supervisor Defendants and Agent Defendants assert a lack of personal jurisdiction over Defendants Winkowski, Aguilar, and McAleenan; seek dismissal of all Defendants from all claims, based on qualified immunity and failure to state a claim, except for the Fourth Amendment claim (Claim Five) against Agent Diaz; and seek dismissal of Plaintiffs' request for attorneys' fees as unrecoverable. On March 27, 2014, Plaintiffs filed their oppositions. (ECF Nos. 32, 33). On April 17, 2014, Defendants filed their replies. (ECF Nos. 36, 37).
On March 27, 2014, Plaintiffs filed the pending Motion for Leave to Conduct Jurisdictional Discovery. (ECF No. 31). On May 1, 2014, Defendants Aguilar, McAleenan, and Winkowski filed an opposition. (ECF No. 39). On May 8, 2014, Plaintiffs filed a reply. (ECF No. 40).
On April 10, 2014, Plaintiffs, the Government Defendants, and the Supervisor Defendants sued in their official capacities filed a Joint Motion to Dismiss. (ECF No. 34). The motion stipulated to dismissal with prejudice of the Government Defendants and Supervisor Defendants in their official capacities from all claims but Plaintiffs' First Claim, and Plaintiffs' Eighth Claim. On April 15, 2014, the Court granted the Joint Motion to Dismiss. (ECF No. 35). Plaintiffs' Second, Fourth, and Sixth Claims are asserted against the Supervisor Defendants in their individual capacities.
II. Allegations of the FAC
A. The Shooting
On June 21, 2011, Yañez and Jose Ibarra-Murrieta ("Murrieta") "crossed the border from Mexico to the United States together." (ECF No. 25 at 10). With Murrieta in the lead, the two crossed the primary border fence, where Murrieta encountered United States Border Patrol Agent Nelson. "Upon seeing Agent Nelson, Murrieta leapt back into the culvert and began scaling a pole up the side of Stuart's Bridge." Id. at 11. United States Border Patrol Agent Diaz cut off Murrieta's escape, and Murrieta "descended back into the culvert where Agent Nelson waited." Id. Murrieta initially evaded Agent Nelson, but while he was being chased, he "tripped and fell to the ground" and "Agent Nelson grabbed him by the neck in an attempt to subdue him." Id. "Yañez, who had stayed in the culvert near the primary fence, escaped back to Mexico through the small hole in the fence." Id. "Yañez climbed into a tree that leaned against the southern side of the primary fence near the area where Agent Nelson and Murrieta were grappling in the road." Id. at 12. While attempting to subdue Murrieta, Agent Nelson "admittedly began to strike Murrieta while pinning him to the ground." Id. at 11.
From this point forward, the FAC recounts both the Agents' and Murrieta's versions of the events. According to Agent Nelson and Agent Diaz, while Agent Nelson and Murrieta were struggling, Yañez then "threw two rocks (per Agent Nelson) or one or possibly two rocks (per Agent Diaz) at Agent Nelson." Id. at 12. "The Agents admit that the rock(s) was somewhere between the size of a golf ball and a baseball." Id. Yañez then threw a "nail-studded board that struck Agent Nelson in the head, glancing off his hat." Id. At this time, "Diaz arrived to help subdue Murrieta. Agent Diaz allegedly told Yañez to get off the fence, and then began helping Agent Nelson get control of Murrieta." Id. "Agent Nelson acknowledges that then, without any warning and any further alleged throwing of a rock or board by Yañez, Agent Nelson pulled away from the scuffle with Murrieta. Agent Diaz removed his sidearm from its holster, uttered not a single additional word, and shot Yañez in the head." Id.
Murrieta's version of events "differs markedly." Id. at 13. According to Murrieta, Yañez "never threw anything at Nelson or anyone else." Id. at 14. "Instead, both Agent Nelson and Agent Diaz had Murrieta on the ground and were beating him. Agents Nelson and Diaz easily outweighed and outmuscled the slight-framed Murrieta, who was facedown in the dirt road." Id. "In an apparent attempt to stop the attack, Yañez yelled that he was going to use his cellphone to take video and pictures of the beating. Upon hearing Yañez's threat to record the Agents' attack on Murrieta, Agent Diaz stopped beating Murrieta, stood up, and, without warning or provocation, shot Yañez in the head." Id. at 14.
"Whichever of these two versions of the shoot the jury believes, the Agents unlawfully used excessive, lethal force against Yañez." Id.
B. The Rocking Policy
The shooting of Yañez was not a "spontaneous act, " but an action taken pursuant to the "Rocking Policy, " a policy with the "imprimatur of the highest-ranking DHS officials." Id. at 15, 16. "Pursuant to this unlawful Rocking Policy, Border Patrol agents along the southern border regularly use excessive, lethal force against persons of perceived Hispanic descent and Mexican nationality." Id. The Supervisor Defendants, which include high ranking DHS officials, such as Janet Napolitano, Secretary of DHS, and local Border Patrol supervisory personnel, such as Rodney Scott, the Acting Deputy Chief Patrol Agent of the Border Patrol's San Diego Sector, "knew, or reasonably should have known, that Border Patrol agents along the southern border... had a regular pattern and practice of implementing a Rocking Policy pursuant to which agents deemed others' throwing of rocks at them to be per se lethal force that justifies the agents' shooting to kill the alleged rock-throwers." Id. at 16. "Despite repeated public statements by agents' representatives that the Rocking Policy is lawful and appropriate, and despite the evidence (including video evidence) of agents' regular use of excessive, lethal force along the southern border, none of the Government Defendants or Supervisor Defendants objected to or demanded a stop to such unlawful force." Id. at 27. "For example, on June 9, 2010, the National Border Patrol Council of the American Federation of Government Employees (NBPC') issued a nationwide press release that succinctly stated the Rocking Policy." Id. at 17. The FAC identifies fourteen instances of Border Patrol agents killing persons at the border in response to alleged rock throwing. In one instance, at the border near El Paso, the Department of Justice and the president of the NBPC concluded that the shooting of a Mexican teenager was justified. Although the teenager was allegedly throwing rocks at Border Patrol agents, the allegation was proven to be untrue by three videos of the event.
In addition, the Government and Supervisor Defendants have shown "consistent disregard of complaints regarding the Rocking Policy." Id. at 22. The FAC alleges ten instances where "national and international organizations have condemned the Border Patrol's routine use of excessive, lethal force along the southern border." Id. For example, according to the Huffington Post, the Mexican Attorney General told Defendant Napolitano that an alleged border shooting of a Mexican national in response to rock throwing was an "unjustified use of force against our population." (ECF Nos. 25 at 25, 32-1 at 152). Additionally,
[t]he DHS commissioned the Police Executive Research Forum (PERF') to provide expert, objective guidance to DHS and CBP regarding the use of lethal force in response to alleged rock-throwing... PERF carefully studied the issue and submitted a report to DHS and CBP advising that the Rocking Policy is unlawful and that those agencies should no longer permit agents to treat the throwing of rocks at them as per se deadly force to which they can respond with lethal gunfire. On November 5, 2013, Defendant Fisher announced that the agencies had decided to reject the expert, objective recommendation that they had commissioned PERF to provide, and instead to reaffirm yet again the unlawful Rocking Policy.
(ECF No. 25 at 26-27).
Finally, the Government and Supervisor Defendants "have knowingly failed to provide for adequate training of Border Patrol agents concerning the proper use of force" by failing "to ensure that the agents knew that the Rocking Policy is unlawful under international and domestic law." Id. at 27. They have also "failed to take timely and effective measures to prohibit, prevent, and punish such practices and to punish or discipline the perpetrators and responsible commanders." Id. at 28.
The FAC asserts the following claims for relief: (1) violation of the law of nations against the Government Defendants; (2) violation of the Fifth Amendment Due Process Clause against the Government Defendants and Supervisor Defendants; (3) violation of the Fifth Amendment Due Process Clause against the Agent Defendants; (4) violation of the Fourth Amendment's prohibition against unreasonable seizures against the Government Defendants and Supervisor Defendants; (5) violation of the Fourth Amendment's prohibition against unreasonable seizures against the Agent Defendants; (6) violation of the Fifth Amendment's Equal Protection Clause against the Government Defendants and Supervisor Defendants; (7) violation of the Fifth Amendment's Equal Protection Clause against the Agent Defendants; and (8) Declaratory Relief regarding the judgment bar provision of the Federal Tort Claims Act ("FTCA").
III. The Government and Supervisor Defendants' Motion to Dismiss (ECF No. 26) Based on Sovereign Immunity
Subsequent to the Court's April 15, 2014 Order granting the Joint Motion to Dismiss (ECF No. 35), the only pending issues in the Government Defendants' and Supervisor Defendants' Motion to Dismiss (ECF No. 26) are whether Plaintiffs' First Claim for violation of the law of nations is barred by sovereign immunity, and whether Plaintiffs' prayer for attorneys' fees should be dismissed as unrecoverable.
The Government Defendants contend that Plaintiffs' First Claim for violation of the law of nations cannot be maintained against the United States or its agencies because the United States has not waived its sovereign immunity for violations of international law. (ECF No. 26-1 at 11-16). Specifically, the Government Defendants contend that neither Alien Tort Statute ("ATS") nor any treaty or international declaration provides the explicit Congressional waiver required to effectively waive sovereign immunity. Id. at 11-15 The Government Defendants also contend that the Federal Tort Claims Act's ("FTCA") limited waiver of sovereign immunity does not apply to international-law based claims. Id. at 15-16.
Plaintiffs assert that the alleged shooting amounted to an extra-judicial killing, a jus cogens  violation of international law. (ECF No. 33 at 17-18). Plaintiffs contend that the United States and its agencies are "a fortiori" deprived of sovereign immunity for jus cogens violations because foreign officials and governments are not protected by foreign sovereign immunity under the ATS for jus cogens violations. Id. at 17-20. Plaintiffs rely on Sosa v. Alvarez Machain, 542 U.S. 692 (2004) for the propositions that: (1) violations of "specific, universal, and obligatory" international norms are actionable under the ATS; and (2) the very purpose of the ATS was to permit suits by non-U.S. citizens against U.S. officials acting in their official capacity, such that "no additional Congressional waiver of sovereign immunity was required." Id. at 20-26. Finally, Plaintiffs contend that sovereign immunity for an extrajudicial killing would be contrary to international law, citing Restatement (Third) of Foreign Relations Law § 711(a) (1987) and the European Convention of Human Rights, and the United States' own international obligations, citing the American Convention on Human Rights. Id. at 26-30. Plaintiffs contend that the Charming Betsy canon should be applied, that is, "the Court should not construe the ATS to conflict with international law absent an affirmative expression of congressional intent, '" by considering these international mandates. Id. at 31 (citing Heong v. United States, 112 U.S. 536, 540 (1884)).
The United States, as a sovereign, is immune from suit. United States v. Mitchell, 445 U.S. 535, 538 (1980). "It is axiomatic that Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States." Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974). The United States "may not be sued without its consent and the terms of such consent define the court's jurisdiction." Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987). A waiver of sovereign immunity as contained in any statute "will be strictly construed, in terms of its scope, in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192 (1996). "A party bringing a cause of action against the federal government bears the burden of showing an unequivocal waiver of immunity." Baker, 817 F.2d at 562. A waiver of the sovereign immunity of the United States must be "unequivocally expressed." Franconia Assoc. v. United States, 536 U.S. 129, 141 (2002).
The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The "[ATS] has been interpreted as a jurisdiction statute only-it has not been held to imply any waiver of sovereign immunity." Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011) (quoting Goldstar (Panama) S.A. v. United States, 967 F.2d 956, 968 (4th Cir. 1992)); see also Koohi v. United States, 976 F.2d 1328, 1333 n.4 (9th Cir. 1992); Industria Panificadora S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir. 1992). Therefore, "any party asserting jurisdiction under the [ATS] must establish, independent of that statute, that the United States has consented to suit." Tobar, 639 F.3d at 1196.
The United States has not unequivocally expressed its consent to suit pursuant to the ATS. Controlling case law in this Circuit holds that the ATS does not waive sovereign immunity. Tobar, 639 F.3d at 1196. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) does not hold otherwise. In Sosa, the plaintiff, a Mexican physician, sued another Mexican national for abducting him and bringing him to the United States for his arrest. Id. at 698. The Supreme Court interpreted the ATS to permit private causes of action for a select few torts in violation of the law of nations that were "defined with a specificity comparable to the features of the 18th-century paradigms" of "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Id. at 724-25. Sosa does not address whether the United States may be sued pursuant to the ATS and does not hold that sovereign immunity is waived for a violation of the law of nations.
Plaintiffs have not established, "independent of [the ATS], that the United States has consented to suit." Tobar, 639 F.3d at 1196. The two treaties Plaintiffs rely on do not waive sovereign immunity. The American Convention on Human Rights has not been ratified. The International Covenant on Civil and Political Rights has been ratified by the Senate, "[b]ut that treaty is not self-executing and therefore did not itself create obligations enforceable in the federal courts.'" Tobar, 639 F.3d at 1196 (citing Sosa, 542 U.S. at 735).
The Court further concludes that the alleged jus cogens violation by the Government and Supervisor Defendants does not result in a waiver of, or exception to, sovereign immunity. The waiver must be "unequivocally expressed." Franconia Assoc., 536 U.S. at 141. In Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (1992), the Ninth Circuit recognized that a foreign state could lose its foreign immunity for committing a jus cogens violation because jus cogens norms have the "highest status under international law, " and the principle of foreign sovereign immunity is itself a principle of international law. Id. at 717-18. However, Plaintiffs have cited no authority for the proposition that alleging a jus cogens violation waives the domestic sovereign immunity of the United States, a principle firmly rooted in domestic law.
Finally, the Court cannot apply the Charming Betsy canon, which provides that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, " Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804), to conclude that the ATS waives sovereign immunity for jus cogens violations. First, although a jus cogens violation is a violation of the law of nations, Siderman de Blake, 965 F.2d at 714, no authority requires a waiver of sovereign immunity to remedy that jus cogens violation. The international law sources cited by Plaintiffs stand for the general proposition that violations of international law committed by a state or its officials must be remedied by that state, but they do not require that a state consent to being sued directly. In this case, Plaintiffs are not precluded by the doctrine of sovereign immunity from suing the Agent or Supervisor Defendants in their individual capacities.
Second, "the Supreme Court has never invoked Charming Betsy against the United States in a suit in which it was a party." United States v. Corey, 232 F.3d 1166, 1179 (9th Cir. 2000). "The concerns that underlie the canon are obviously much less serious where the interpretation arguably violating international law is urged upon [the court] by the Executive Branch of our government.' When the Executive Branch is the party advancing a construction of a statute with potential foreign policy implications, we presume that the President has evaluated the foreign policy consequences of such an exercise of U.S. law and determined that it serves the interests of the United States.'" ARC Ecology v. U.S. Dept. Of Air Force, 411 F.3d 1092, 1102 (9th Cir. 2005) (citing Corey, 232 F.3d at 1179); see also Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (holding that because "Congress is not constrained by international law as it is by the Constitution... we are bound by a properly enacted statute, provided it be constitutional, even if that statute violates international law.'") (citing Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991)).
Because Plaintiffs' First Claim is only asserted against the Government Defendants, Plaintiffs fail to state a claim for "violation of the law of nations." See Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 907 (9th Cir. 2003) ("In sovereign immunity analysis, any lawsuit against an agency of the United States or against an officer of the United States in his or her ...