Case 2:08-cv-01652-PGS-ES Document 15 Filed 05/22/2008 Page 1 of 63

Baher Azmy Bassina Farbenblum Scott Michelman Seton Hall School of Law Center for Social Justice 833 McCarter Highway Newark, NJ 07102-5210 (973) 642-8709 Attorneys for Plaintiffs

R. Scott Thompson Scott L. Walker Heather C. Bishop Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068 (973) 597-2500 Attorneys for Plaintiffs

MARIA ARGUETA; WALTER CHAVEZ; ANA GALINDO; W.C. by and through his parents Walter Chavez and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS; JUAN ONTANEDA; VERONICA COVIAS; CARLA ROE 1; CARLA ROE 2; CARLOS ROE 2; CARLA ROE 3; and CARLOS ROE 4,

DOCUMENT FILED ELECTRONICALLY

Plaintiffs,

Honorable Peter G. Sheridan, U.S.D.J. Honorable Esther Salas, U.S.M.J.

-vs-

Civil Action No: 2:08-cv-1652

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); JULIE L. MYERS, Assistant Secretary for Immigration and Customs Enforcement; JOHN P. TORRES, Deputy Assistant Director for Operations, Immigration and Customs Enforcement; SCOTT WEBER, Director, Office of Detention and Removal Operations, Newark Field Office; BARTOLOME RODRIGUEZ, Former Director, Office of Detention and Removal Operations, Newark Field Office; JOHN DOE ICE AGENTS 1-60; JOHN SOE ICE SUPERVISORS 1-30; and JOHN LOE PENNS GROVE OFFICERS 1-10,

FIRST AMENDED COMPLAINT
JURY TRIAL DEMANDED

Defendants.

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Plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C. (by and through his parents Walter Chavez and Ana Galindo), Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, Carla Roe 1, Carla Roe 2, Carlos Roe 2, Carla Roe 3, and Carlos Roe 4 (collectively “plaintiffs”) by their attorneys, the Seton Hall School of Law Center For Social Justice and Lowenstein Sandler PC, for their Complaint allege as follows:
INTRODUCTION 1. This is a civil rights action raising constitutional claims under the Fourth and Fifth Amendment against federal officials pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against state officials pursuant to 42 U.S.C. § 1983 and the New Jersey Constitution, for their participation in a practice of unlawful and abusive raids of immigrant homes across the state of New Jersey. The practice flourished as a predictable consequence of the Department of Homeland Security’s arbitrary, exponentially-increased quotas for the arrest of immigrants with old deportation orders, and amidst the escalation of a program the Department (“DHS”) calls “Operation Return to Sender.” Under pressure from these quotas, immigration agents have regularly disregarded the obligation to secure a judicial warrant or probable cause in carrying out unlawful entries and dragnet searches of homes in which the agents only loosely suspect immigrant families may reside. 2. Plaintiffs in this case are all victims of these unconstitutional home raid practices. They include United States citizens and lawful residents. Each plaintiff was present in his or her home in the pre-dawn hours of the morning, when a team of federal agents gained unlawful entry, through deceit or, in some cases, raw force. Agents swept
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throughout the homes, ordered sleeping people – including, in some cases, children – out of bed, and detained the occupants without judicial warrant or other legal justification.
3. Some of the plaintiffs were subjected to physical or verbal abuse; others were threatened or had firearms pointed at them or pressed into their chests. At least one plaintiff was forcibly prevented from contacting counsel. At least one of them was subsequently arrested despite having papers – which the arresting agents refused even to look at – reflecting her legal status. Each plaintiff has suffered and continues to suffer from the effects of that abusive conduct.
4. Plaintiffs’ experiences are typical of the “Operation Return to Sender” home raid modus operandi throughout the state and the nation, which has been comprehensively documented through media reports and first-hand accounts from other victims. The execution of these raids in New Jersey illustrates how “Operation Return to Sender” has extended far beyond its stated goal of apprehending individuals with outstanding deportation orders – persons Immigration and Customs Enforcement (“ICE”) calls “fugitives.” ICE statistics reveal that as few as one in three individuals arrested in “Operation Return to Sender” in New Jersey is actually a “fugitive” in alleged violation of a deportation order. Instead, the large majority – euphemistically called “collateral arrests” – are individuals merely swept up in the recent dragnets. Agents regularly raid homes where the purported “fugitive” target is not present, and could not reasonably have been believed to have been present. According to a recent report by DHS’s Inspector General, agents rely on data that is outdated and inaccurate in up to 50% of cases.
5. Despite aggressively increasing the arrest quotas and the number of agents participating in “Operation Return to Sender,” and thereafter being notified – via press
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reports, lawsuits, and congressional testimony – of the widespread allegations of unconstitutional and abusive conduct by ICE agents as part of this program, the DHS supervisory officials named in this Complaint have continued to foster an institutional culture of lawlessness. Specifically, they have failed to develop meaningful guidelines or oversight mechanisms to ensure that home arrests are conducted within constitutional limits, to provide the agents involved with adequate training (or for some newer agents, any training) on the lawful execution of fugitive operations, or otherwise ensured accountability for the failure to conduct fugitive operations within constitutional limits. On the contrary, on many occasions, DHS supervisory officials have proudly publicized the increasing numbers of arrests made as a result of the unconstitutional raids that continue to be carried out in the shadows and the dark of night.
6. The Constitution constrains the actions of government officials in every domain and protects citizens and non-citizens equally from unreasonable searches, seizures, and incursions into their homes. In this action, the plaintiffs seek to hold responsible those who conducted, directed, and sanctioned the complained-of conduct, all of which violated clearly established constitutional protections.
JURISDICTION AND VENUE 7. This Court has jurisdiction over this federal civil rights action pursuant to 28 U.S.C. §§ 1331 & 1343(a)(3). Supplemental jurisdiction over pendant state law claims is proper pursuant to 28 U.S.C. § 1367. 8. Venue lies in this District pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims occurred here, and also under 28 U.S.C. § 1391(e)(3) because defendants include federal officers acting under color of
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legal authority, at least one of the plaintiffs resides in this district, and no real property is involved in this action.
PARTIES The Plaintiffs 9. Plaintiff MARIA ARGUETA is of Latino origin, and has held lawful Temporary Protection Status in the United States since 2001. At all times relevant to this action she was a resident of North Bergen, New Jersey. 10. Plaintiff WALTER CHAVEZ is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action he was a resident of Paterson, New Jersey. 11. Plaintiff ANA GALINDO is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action she was a resident of Paterson, New Jersey. 12. Plaintiff W.C., is the nine-year old son of plaintiffs Walter Chavez and Ana Galindo, and is a United States citizen. At all times relevant to this action he was a resident of Paterson, New Jersey. 13. Plaintiff ARTURO FLORES is of Latino origin and is a United States citizen. At all times relevant to this action he was a resident of Clifton, New Jersey. 14. Plaintiff BYBYANA ARIAS is of Latino origin and is a United States citizen. At all times relevant to this action she was a resident of Clifton, New Jersey. 15. Plaintiff JUAN ONTANEDA is of Latino origin. At all times relevant to this action he was a resident of Newark, New Jersey.
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16. Plaintiff VERONICA COVIAS is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action she was a resident of Paterson, New Jersey.
17. Plaintiff CARLA ROE 1 is of Latino origin. At all times relevant to this action she was a resident of Hudson County, New Jersey.
18. Plaintiff CARLA ROE 2 is of Latino origin. At all times relevant to this action she was a resident of Morris County, New Jersey.
19. Plaintiff CARLOS ROE 2 is of Latino origin. At all times relevant to this action he was a resident of Morris County, New Jersey.
20. Plaintiff CARLA ROE 3 is of Latino origin. At all times relevant to this action she was a resident of Salem County, New Jersey.
21. Plaintiff CARLOS ROE 4 is of Russian origin. At all times relevant to this action he was a resident of Passaic County, New Jersey.
22. Plaintiffs Carlos and Carla Roes 1-4 seek to proceed pseudonymously because they have an acute fear of retaliation by the immigration authorities whom they sue here. ICE has been known to retaliate against immigrants who have spoken out against immigration laws and practices. See, e.g., Laura Wides-Munoz, Student activist says ICE targeted her family to silence her, Associated Press, Mar. 4, 2008.
23. Because the unconstitutional conduct described in this Complaint disproportionately harms immigrants who have legitimate reason to fear immigration authorities, there is a strong public interest in allowing plaintiffs to proceed pseudonymously in order to provide this Court with an opportunity to protect the constitutional rights of individuals in this most vulnerable group.
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The Federal Defendants 24. Defendant IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”) is a bureau of the United States Department of Homeland Security (“DHS”). ICE is charged with investigative and enforcement responsibilities with respect to federal immigration law. ICE is headquartered in Washington, D.C. 25. Defendant JULIE L. MYERS is, and was at all relevant times, the Assistant Secretary for Homeland Security for Immigration and Customs Enforcement, located in Washington, D.C. Defendant Myers is charged with the constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of ICE. Defendant Myers is sued for damages in her individual capacity and for injunctive relief in her official capacity. ICE press releases describing arrests in New Jersey under Operation Return to Sender have repeatedly stated that those arrests were made pursuant to the nationwide interior immigration enforcement strategy announced by defendant Myers and Michael Chertoff, Secretary of the Department of Homeland Security. 26. Defendant JOHN P. TORRES is Deputy Assistant Secretary for Operations for ICE, and was at all relevant times, the Director (or Acting Director) of the ICE Office of Detention and Removal Operations (“DRO”) in Washington, D.C. DRO is the branch of ICE that coordinates the removal of foreign nationals not entitled to remain in the country. As Director, defendant Torres is responsible for overseeing the apprehension, detention and removal of foreign nationals charged with violating federal immigration law. He is also responsible for the supervision of law enforcement officers assigned to DRO field offices, including the Newark, New Jersey office. Defendant
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Torres is responsible for the supervision and oversight of Fugitive Operations Teams. Defendant Torres is sued for damages in his individual capacity and for injunctive relief in his official capacity.
27. Defendant SCOTT WEBER is the Director of the DRO Field Office in Newark, New Jersey. Defendant Weber is responsible for managing ICE enforcement activities in New Jersey, including the implementation of Operation Return to Sender by Fugitive Operations Teams. Defendant Weber is sued for damages in his individual capacity and for injunctive relief in his official capacity.
28. Defendant BARTOLOME RODRIGUEZ is the former Acting Field Office Director for the DRO Field Office in Newark, New Jersey. In that role, defendant Rodriguez was responsible for managing ICE enforcement activities in New Jersey, including the implementation of “Operation Return to Sender” by Fugitive Operations Teams, in or around February-May 2007. Defendant Rodriguez remains employed with the Newark DRO Field Office. Defendant Rodriguez is sued for damages in his individual capacity and for injunctive relief in his official capacity.
29. At all times relevant to the incidents complained of in this action, defendants JOHN DOE ICE AGENTS 1-60 were federal agents employed by ICE. They are responsible for carrying out the policies and practices of ICE, including the execution of “Operation Return to Sender” and the specific home raids complained of here. They are sued for damages in their individual capacities and for injunctive relief in their official capacities. Upon information and belief, each John Doe ICE Agent defendant is responsible for the injuries and damages suffered by at least one plaintiff as a result of the acts alleged in this Complaint.
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30. At all times relevant to the incidents complained of in this action, defendants JOHN SOE ICE SUPERVISORS 1-30 were federal agents employed by ICE. They are responsible for carrying out and supervising the policies and practices of ICE, including the execution of Operation Return to Sender, and are sued for damages in their individual capacities and for injunctive relief in their official capacities. Upon information and belief, each John Soe ICE Supervisor defendant is responsible for the injuries and damages suffered by at least one plaintiff as a result of the acts alleged in this Complaint.
31. Plaintiffs are unaware of the true names of, total numbers of, and positions held by defendants John Doe ICE Agents and John Soe ICE Supervisors, and therefore sue those defendants by fictitious names. Plaintiffs will amend their Complaint to state the true names of these defendants after those names have been ascertained.
32. In committing the acts alleged in this Complaint, defendants John Doe ICE Agents and John Soe ICE Supervisors were acting on behalf of ICE. Upon information and belief, defendants John Doe ICE Agents were acting under the immediate supervision of John Soe ICE Supervisors pursuant to the authorization of defendants Myers, Torres, Weber, and/or Rodriguez.
The Penns Grove Defendants 33. Defendants JOHN LOE PENNS GROVE OFFICERS 1-10 were, at all times relevant to the incidents complained of in this action, officers of the Penns Grove Police Department. One or more defendants Loe, including one female officer and one male officer, participated, with John Doe ICE Agents and John Soe ICE Supervisors, in the raid on the home of plaintiff Carla Roe 3 in Penns Grove, New Jersey on August 1,
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2006. These defendants are sued in their individual capacities. Plaintiffs are unaware of the true names of, total numbers of, and positions held by defendants John Loe Penns Grove Officers, and therefore sue those defendants by fictitious names. Plaintiffs will amend their Complaint to state the true names of these defendants after those names have been ascertained.
FACTUAL BACKGROUND ICE Fugitive Operations in New Jersey 34. Since 2002, the ICE Office of Detention and Removal Operations (“DRO”) has overseen ICE’s National Fugitive Operation Program,1 established to arrest and remove so-called immigration “fugitives.” ICE defines “fugitives” as individuals with outstanding deportation orders or individuals who failed to report to a DRO officer after receiving notice to do so. ICE implements the Fugitive Operations Program through Fugitive Operations Teams (“FOTs”) tasked with apprehending immigration fugitives. 35. Since 2006, the Fugitive Operations Program has substantially escalated its enforcement practices. At the end of Fiscal Year (“FY”) 2007, there were 75 FOTs nationwide, a five-fold increase over the number of teams in 2005. Congress has authorized funding for 29 additional teams in FY 2008. Since mid-2006, there have been four FOTs in the state of New Jersey (doubled from two FOTs at the beginning of 2005). 36. On January 31, 2006, each FOT in the country was ordered to arrest 1,000 fugitive aliens per year. This quota represented an 800% increase on the previous quota of 125 arrests per year, mandated just two years earlier.

1

The DRO was then a division of the Immigration and Naturalization Service

(“INS”). In 2003, when the INS was abolished and ICE was created in its place, the

DRO became a division of ICE.

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37. On May 26, 2006, ICE commenced its “Operation Return to Sender,” an operation directed at arresting “fugitive” aliens, prioritizing the arrest of individuals possessing criminal records.
38. Following the commencement of Operation Return to Sender and the implementation of the 1,000-arrests quota, the number of individuals arrested by New Jersey FOTs doubled from 1,094 in FY 2006 to 2,079 in FY 2007.
Unlawful Home Raids Practices Unlawful Entry
39. A typical home raid is conducted in the pre-dawn hours of the morning. Multiple ICE agents surround a home believed to house one or more immigrant families. The agents pound furiously on the door and/or windows.
40. The agents and their supervisors use a variety of tactics – frequently deceptive and/or coercive – to cause an occupant to open the door. In many raids, the agents shout “Police!” or, in some cases, enlist a local police officer to deceive occupants about the ICE agents’ identities. ICE agents are not, in fact, police officers; rather, they are administrative officers authorized to enforce the federal immigration laws. Because ICE officers do not usually have the general criminal search and arrest powers of police officers, the assertion that they are “police” misrepresents not only their identity but also the scope of their legal authority. This misrepresentation is especially significant to immigrant populations, who have been encouraged by New Jersey state officials to assist local police without fear of immigration consequences.
41. In other raids, an occupant simply opens the door in response to the pounding, assuming an emergency. Once the door is opened, the agents enter the home,
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without properly identifying themselves, and without obtaining an occupant’s consent. If the agents do not have a clear path of entry, they frequently forcibly push in the door and the individual who opened it. It has been reported that agents have even broken down doors to gain entry.
42. Some of the ICE agents involved in Operation Return to Sender treat the raids as a perverse sport. For example, in an April 30, 2007 email obtained under a Freedom of Information Act Request, a Connecticut ICE agent boasted to a state police officer, “We have an [operation] scheduled for Wed, 05/02/07 in New Haven . . . [I]f you’re interested we’d love to have you! We have 18 addresses — so it should be a fun time!! Let me know if you guys can play!!” (A copy of the email, obtained through a Connecticut Freedom of Information request, is attached as Exhibit A.)
43. For many ICE agents, deceit and dishonesty are regularized as part of the home raids practice. For example, according to a report from the Freehold, New Jersey Police Department, an ICE Team Leader told a local police officer that he and five members of his team surrounded a Brazilian family’s home at 6:00 a.m., but that the family was not opening the door. The ICE official asked the local police officer to have “a Marked Freehold Boro[ugh] Police vehicle pull up [sic] to the house and have a uniformed officer knock and have the accused family come to the door. Once someone was to come to the door ICE would take over the investigation.” (A copy of the Freehold Police Department Operations Report, dated August 8, 2007, is attached as Exhibit B.)
Unlawful Seizures 44. Once the door is open, multiple agents typically enter and rapidly sweep through the home, displaying or brandishing firearms as if conducting a high-risk drug
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sweep. ICE agents on occasion point their guns directly at occupants who, far from posing a genuine threat, are partially undressed or sit terrified in their night clothes.
45. Agents order all of the occupants out of bed and to a central location in the home. Frequently these occupants include children, many of whom are United States citizens. Even though the purported “fugitive” target is frequently unknown to the occupants, the agents interrogate the occupants about their own identities and immigration status, without reasonable basis for believing that they are not United States citizens. In some raids, ICE agents are verbally and physically abusive.
46. In front of children and family members, agents handcuff individuals they suspect are unlawfully present in the United States and order them into a van outside. Often the agents do not allow the arrestees to change out of their bedclothes. They do not tell family members where they are taking their loved ones or how to find them. The agents drive around and repeat this sequence at other homes until their van is filled.
47. The media has repeatedly documented severe abuses emerging from the ICE raids practice. See e.g., Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. Times, Oct. 3, 2007 (ICE agents conducted home raids wearing cowboy hats and brandishing shotguns and automatic weapons at home occupants including United States citizens and lawful residents); Aaron Nicodemus, Illegal Aliens Arrested in Raid; Feds Nab 15 in Milford, Sunday Telegram (Massachusetts), Dec. 9. 2007, at B1 (ICE agents broke through front door of home in the early morning with guns drawn, forcing occupants to get on the floor and not move); Elizabeth Llorente, Suits: Feds Play Dirty; Immigration Officials Say Raids on Illegals are Within the Law, The Record (Hackensack, N.J.), Jan. 2, 2008 (armed ICE agents show up at homes at 5:00 a.m., bang
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on doors, kick them in or use ruses to gain entry, then go into people’s bedrooms, rip covers off people in their beds and question them).2
48. The home raids have a devastating effect on children who witness law enforcement agents sweeping through their home with guns, ordering them and their parents to gather together and suddenly handcuffing and dragging away their parents in the middle of the night. The large majority of these children are United States citizens.3
The Arbitrary, Inaccurate, and Pretextual Nature of “Fugitive” Raids 49. The alleged purpose of Operation Return to Sender is the arrest of “fugitives,” with a priority on criminal fugitives. Indeed, in defendant Myers’s 2007 budget presentation to the House Appropriations Committee, she stated that additional FOTs were necessary to “increase the efficiency of ICE immigration enforcement efforts to locate, apprehend, and remove primarily criminal aliens.” The majority of individuals arrested in New Jersey under Operation Return to Sender, however, are neither criminals

2

See also Sandra Hernandez, ICE Increases Use of Home Raids, Daily Journal,

Mar. 26, 2008 (ICE agents came to home of immigration attorney, looking for another

person; when attorney closed his door and asked them to leave premises because they

could not produce a search warrant, the agents threatened to break his door down); Nina

Bernstein, Immigrant Workers Caught in Net Cast for Gangs, N.Y. Times, Nov. 25, 2007

(Nassau County police commissioner describing the “cowboy mentality” of ICE agents

who raided Long Island homes, including armed raids on the wrong homes); Sandra

Forester, Immigration Raids Spark Anger in Sun Valley Area: One Family of Legal

Residents Says they were Terrorized. Agents Arrested 21 People, Idaho Statesman, Sept.

21, 2007; Press release, Office of the Mayor of New Haven, Connecticut, June 6, 2007

(describing “federal agents pushing their way into houses, brusquely ordering men,

women and children to common areas, and leading family members and loved ones away

in handcuffs”); Shannon Prather, Immigration Raids, Arrests Trigger Lawsuits, St. Paul

Pioneer Press (Minnesota), Apr. 19, 2007 (ICE agents, wearing bulletproof vests and

armed with guns, pushed their way into homes and terrified children).

3

See Jeffrey S. Passel, Pew Hispanic Center, The Size and Characteristics of the

Unauthorized Migrant Population in the U.S. (2006), http://pewhispanic.org/files/

reports/61.pdf (finding that five out of six families in which at least one parent does not

possess lawful immigration status, have at least one U.S. citizen child).

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nor fugitives. Of the 2,079 individuals arrested in New Jersey in FY 2007, 87% had no criminal history. See ICE Press Release, Newark, Dec. 4, 2007. Moreover, ICE statistics reveal that in New Jersey, as few as one in three individuals arrested pursuant to Operation Return to Sender is actually a “fugitive,” as defined by ICE. See ICE Press Releases, Newark, May 1, 2007 (only 75 “fugitives” among 217 arrests from April 9-27, 2007); Apr. 2, 2007 (only 55 “fugitives” among 128 arrests from March 19-30, 2007); Mar. 1, 2007 (only 89 “fugitives” among 220 arrests in January 2007); Nov. 20, 2006 (only 53 “fugitives” among 137 arrests from November 13-20, 2006).
50. The remaining individuals arrested were a mix of undocumented immigrants and, upon information and belief, United States citizens, permanent residents, and visa-holders who have never had any court order, warrant or criminal conviction against them, but who were nevertheless swept up in the “Operation Return to Sender” dragnet. ICE refers to these individuals – the large majority of those arrested in New Jersey – as “collateral arrests.” This euphemism obfuscates the reality that the search for “fugitives” often serves as a pretext for sweeping up large numbers of immigrants.
51. The accounts of plaintiffs and media reports indicate that in a substantial number of cases, ICE agents conduct home raids without reasonable grounds for believing that the purported target of their search is present in the home being raided. For example, in a series of pre-dawn warrantless raids on February 19, 2008 in Passaic, New Jersey, ICE acknowledged that its agents raided 13 homes in search of only six individuals.4 ICE agents returned with 12 arrestees.

4

Meredith Mandell, Immigration raid raises questions about Passaic's 'safe haven'

status, NJ Herald News, Mar. 12, 2008; see also Nina Bernstein, Immigrant Workers

Caught in Net Cast for Gangs, N.Y. Times, Nov. 25, 2007 (Nassau County police

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52. On February 13, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law held a hearing on ICE’s detention and deportation of United States citizens in its home raids and other enforcement activities. An ICE representative acknowledged at that hearing that United States citizens have been wrongfully detained and even deported.5 The chair of the subcommittee remarked after the hearing that the United States had reached an era “where an overzealous government is interrogating, detaining and deporting its own citizens while treating non-citizens even worse.”
53. Compounding the deliberate pretextual use of “fugitive” searches to arrest undocumented immigrants, much of the information in the database that ICE agents purportedly rely on to locate fugitives is outdated, inaccurate, and incomplete. In March 2007, the DHS Office of Inspector General publicly criticized ICE for its incomplete and inaccurate background information, understaffing, and incomplete training. The Inspector General’s detailed report on the Fugitive Operations Program, attached as Exhibit C, noted that:
(a) the DRO database that FOTs rely on contains inaccurate and incomplete information on fugitive aliens; a veteran analyst of the database estimated that 50% of the data is inaccurate;
(b) data was not reconciled with other federal databases to establish the validity of identity and background information on any particular fugitive;

commissioner describing the “cowboy mentality” of ICE agents who raided Long Island

homes, including armed raids on the wrong homes).

5

Eunice Moscoso, House panel questions U.S. immigration raids, Austin

American Statesman, Feb. 16, 2008. Marisa Taylor, Feds admit jailing citizens as illegal

immigrants, Houston Chronicle, Feb. 14, 2008.

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(c) in 2006, DRO began hiring lower-level, less experienced officers for fugitive operations; and
(d) some fugitive operations agents have not completed the Fugitive Operations Training Program – 2004 guidelines allow the agents to work for up to two years before receiving the necessary training. 54. The raids on plaintiffs’ homes exemplify the extraordinary level of inaccuracy.
Raids on Individual Plaintiffs’ Homes Maria Argueta
55. Plaintiff Maria Argueta has had valid Temporary Protection Status since 2001, allowing her to remain lawfully in the United States for the duration of that status.
56. On January 29, 2008, Maria was asleep in her home, the ground-floor apartment in a building in North Bergen, New Jersey. There were other tenants living in separate apartments on the basement and second-floor levels.
57. At or around 4:30 a.m., Maria was awakened by very loud banging on the door and windows of her building. The banging was so aggressive Maria thought the people were going to break the windows and the door. Maria was very frightened and did not open the door.
58. Upon information and belief, the basement tenants opened the door to their apartment and were confronted by defendant John Doe ICE Agents. The agents identified themselves as police, which they were not, and claimed they were looking for a criminal.
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59. Upon information and belief, the basement tenants telephoned the landlord of the residence, who was Maria’s brother, and handed the telephone to one or more John Doe ICE Agents. Upon information and belief, the agents told Maria’s brother that they were police officers searching for a male criminal and that they needed to search the ground floor apartment of the residence. Maria’s brother then telephoned Maria and told her that police officers who were searching for a male criminal were outside and needed access to her apartment.
60. After this call, Maria opened her front door to the John Doe ICE Agents. The agents wore vests with the word “police” printed on them and visibly displayed holstered firearms. Maria saw one woman among them.
61. Having deceived Maria as to their purpose, these John Doe ICE Agents entered Maria’s apartment without voluntary informed consent, probable cause, or exigent circumstances. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of Maria’s home.
62. Once inside Maria’s apartment, the agents identified themselves as police and claimed they were looking for a particular man. Maria told the agents she did not know that man. There was no reasonable basis to suspect the man lived in the apartment, since no man had lived in the apartment in the seven years that Maria had lived here.
63. Without voluntary informed consent, probable cause, or exigent circumstances, the John Doe ICE Agents searched Maria’s entire apartment, entering all the rooms and looking inside closets and underneath beds. Upon information and belief, the agents did not possess a valid judicial warrant for the search of the home.
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64. During the time that the agents were in her home, Maria felt as if she was not free to leave the apartment because the agents followed her throughout the house – even as she went to the bathroom and got changed out of her night clothes – and there were three officers blocking the front door to the apartment during the raid.
65. One or more of the John Doe ICE Agents asked Maria about her immigration status. Maria attempted to explain that she had been granted Temporary Protection Status and was waiting to receive her new TPS card in the mail.
66. Maria provided the agents with documents confirming the TPS grant. The agents threw the documents aside without looking at them. They told her she would not be receiving her TPS card that year.
67. Maria’s TPS status was easily verifiable in the publicly-accessible United States Citizenship and Immigration Service database.
68. One or more of the John Doe ICE Agents asked Maria for identification. She presented her Salvadoran passport, which the agents confiscated and have never returned to her. As a result of this seizure, Maria had to later go to the Salvadoran consulate to obtain a new passport, at her own expense and inconvenience.
69. At the conclusion of their search, John Doe ICE Agents arrested Maria, without a warrant or reasonable belief that she was unlawfully present in the United States and in spite of clear and easily-verifiable evidence to the contrary.
70. A female ICE agent taunted Maria, telling her to put on clothes with long sleeves because where she was going there would be a lot of men.
71. Maria told the agents that her brother was going to get her an attorney to obtain her release from custody. One or more of the John Doe ICE Agents refused to
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allow her speak with an attorney after she stated that her brother would secure one for her, and mockingly told Maria not to bother because even with an attorney’s help she would never be released. Maria was handcuffed and led to a waiting car.
72. One or more of the John Doe ICE Agents transported Maria to an ICE facility in Elizabeth, New Jersey, where several ICE agents laughed at and humiliated her by mockingly singing a popular Latino song entitled “Maria has Gone.”
73. Later that day, Maria was transferred to a different ICE facility in Newark, where she was placed in a windowless office with several other women, before being transferred to a jail in Jersey City.
74. Maria did not receive any food or water until 7:00 a.m. the next morning, over 24 hours after she was arrested.
75. Maria was finally released at 3:00 p.m. on January 30, almost 36 hours after she was arrested.
76. During the entire period of her detention, nobody explained to Maria why she was being detained, or why she was transferred between facilities. She was released without explanation or apology, without her wrongfully-taken passport, and without her jewelry that ICE agents confiscated from her in detention.
Walter Chavez, Ana Galindo, and W.C. 77. Walter Chavez and Ana Galindo have lived in the United States for approximately 28 years and are lawful permanent residents. Their nine-year-old son, W.C., is a United States citizen. Walter and Ana own a home in Paterson, New Jersey, where they lived at all times relevant to this action.
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78. On the morning of April 2, 2008, at approximately 7:15 am, Walter was returning to his home to pick up something for work when six or more unmarked vehicles converged on his house. Two defendant John Doe ICE Agents emerged from one of the vehicles and ran up to Walter’s vehicle. One of them grabbed Walter by the shirt collar and pulled him out. Without identifying themselves, they demanded his name. Walter told them his name.
79. The agents asked to see Ana Galindo. They then physically pushed Walter with their hands toward the front door of his home. Walter asked them why they wanted his wife. One of the John Doe ICE Agents replied, “We’ll tell you when you’re inside. Don’t make things harder. Just tell me where she is.”
80. As the agents pushed Walter up to his front door, one of the John Doe ICE Agents said to Walter, “If you don’t open the door, we’re going to make things worse.” The officers made Walter open the door and shoved him into the house. At least seven defendant John Doe ICE Agents ran inside the house. Three of the agents prevented anyone from leaving by blocking the front door. More John Doe ICE Agents remained outside. At no point did the agents identify themselves.
81. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home.
82. As he entered his house, Walter called out to his wife who was in the shower, “Ana – the police are looking for you!” Ana ran out of the bathroom and threw a shirt on but did not have time to properly dress. One John Doe ICE Agent ran over to Ana and repeatedly yelled at her, “Where are the illegal people?” Another agent repeatedly asked Walter the same question. One of the agents said, “It’s illegal to be
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hiding illegals. If you don’t tell me where they are, things will get worse. If you don’t tell me where they are, we’ll arrest you.”
83. A female agent asked Ana where her sisters were, what their names were, and what Ana’s last name was. Ana replied that she had two sisters in Guatemala, and gave their names and her own. An agent said, “This is not the person we’re looking for.”
84. Having heard the agents shouting at his parents, W.C. came out of his bedroom and ran to his mother, crying. As he did, several of the John Doe ICE Agents opened their jackets and displayed their guns. Some of the agents wore two guns (one on each hip), along with bulletproof vests and clothing imprinted with the acronym "ICE." Upon seeing the child emerge, at least four agents placed their hands on their guns.
85. One of the agents grabbed his gun and pointed it directly at Ana and W.C. 86. W.C. saw the guns and continued to cry. As Ana held her terrified son and tried to calm him, an agent came over and screamed in her face again, “Where are the illegal people?” 87. In front of W.C., an agent said to Ana, “If you’re hiding illegal people here, we’re going to take your son and your residency away.” One of the ICE agents guarding the front door was repeatedly pounding one of his fists into an open hand while glaring menacingly at Ana and W.C. Ana told her son to go to his room. 88. The agents demanded that Ana produce identification. When she went to the bedroom to get it, she found her son hiding under the pillows. When she came back to the living area, she showed the agents her New Jersey driver’s license, as well as her and Walter’s green cards, and her son’s United States passport.
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89. An agent again accused Ana of hiding illegal immigrants; Ana replied that only she, Walter and their son lived in the house.
90. Throughout the raid, the agents remained in the living room and the hallway to the bedrooms. One of the agents looked through Walter and Ana’s family pictures. Several of the agents’ cars had driven up onto Walter’s lawn, which he had spent much time and effort fixing. At no point did the agents produce a warrant or ask for or obtain permission for anything the agents did, including entering the home.
91. Before leaving, one of the agents directly announced, “We’re going to come back. And next time it will be worse.”
92. W.C. was and remains severely traumatized by the raid. He is so afraid the agents will return and may kill him and his parents, that to this day he refuses to sleep alone in his bedroom and insists on sleeping with his mother. Since the raid, W.C. has been shaking and crying in his sleep at night. Once he woke up in the night and told Ana he was too afraid to go back to sleep.
93. Before the raid, W.C. would often play after school, but for many days following the raid he just came home, ate, and went to bed. To this day, he cries often. He often asks Walter and Ana to turn off all the lights and close the shades to prevent the agents from coming back. W.C. is scared when the lights are on in the house. He used to be excited when the doorbell to his house rang; since the raid, he becomes scared every time he hears it. He has asked his father why the agent that was in the doorway, who was pounding his fist into his hand, was looking at him during the raid. W.C. is afraid the agents will do something violent to him or his family.
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94. Walter, Ana, and W.C. all continue to be afraid that the agents will return to the house, just as they said they would.
Arturo Flores and Bybyana Arias 95. Plaintiffs Arturo Flores and his stepdaughter Bybyana Arias are both United States citizens. 96. On the morning of November 13, 2006, Arturo, his wife, and his wife’s teenage daughter Bybyana were asleep in their home in Clifton, New Jersey. 97. At or around 3:00 a.m., Arturo was awakened by loud banging on his front door and the sound of his doorbell ringing repeatedly. 98. As he approached the door, he saw four law enforcement officers, who he later learned were defendant John Doe ICE Agents, through the window. They were holding flashlights and shouting “Police!” 99. When Arturo opened the front door slightly, the agents forced the door open, shoved Arturo out of the way, and unlawfully entered the home in the absence of voluntary informed consent, probable cause, or exigent circumstances. 100. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home. 101. The John Doe ICE Agents stated that they were looking for a particular individual whom they did not immediately identify. 102. Without seeking permission, and without probable cause or exigent circumstances, the John Doe ICE Agents searched all the rooms of Arturo’s home. 103. A female ICE agent entered Bybyana’s bedroom where she was sleeping.
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Stating that she was “the police,” she shined a flashlight at Bybyana and shouted loudly, ordering Bybyana out of bed. The agents ordered her to the common area, where she was detained in her nightclothes.
104. The agents ordered Arturo to open the door to his bedroom where his wife was still in bed. Without seeking or obtaining permission, the female John Doe ICE Agent entered and ordered the wife to the common area, where she was detained.
105. During the time that the agents were in Arturo’s home, none of the occupants were free to leave. One or more of the John Doe ICE Agents repeatedly shouted “Don’t move!” at the occupants in the common room. The agents carried holstered firearms. If an occupant moved, the agents placed their hands on their holstered guns, suggesting they were preparing to draw their weapons.
106. The agents interrogated Arturo without any reasonable basis to believe that he was not a United States citizen.
107. One or more of the John Doe ICE Agents demanded that Arturo produce identification. He produced a valid driver’s license. The agents transmitted over a radio the information found on his license.
108. After they had searched the home, one or more John Doe ICE Agents arrested, handcuffed, and led away Arturo’s wife and brother, in front of Bybyana.
109. One or more of the John Doe ICE Agents remained in the home for an additional period of time after the search and arrests had been completed.
110. Bybyana was extremely distressed by the raid. She had difficulty eating and sleeping for at least six months after it occurred, and thought about the raid constantly. Her school grades markedly declined during that period.
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Juan Ontaneda 111. On the morning of December 7, 2007, plaintiff Juan Ontaneda was living in a multi-family home in Newark, New Jersey. He was renting a room in an apartment with a family consisting of a father, mother, grandfather, and three children. 112. Between 5:30 and 6:00 a.m., Juan was startled by pounding on his front door. The pounding was so loud he feared the door would be knocked down. 113. Believing the person knocking might be another tenant who was locked out, Juan opened the door. He was confronted by six defendant John Doe ICE Agents, wearing jackets bearing the word “ICE” and displaying holstered firearms. 114. Without identifying themselves, one or more of the John Doe ICE Agents showed Juan what appeared to be a computer printout and asked if he knew the person pictured on the printout, a man the agents referred to as “Elias.” Juan denied knowing or recognizing the individual that the agents were looking for. 115. Juan attempted to close the door, but several of the John Doe ICE Agents physically held the door open. 116. At this time, the owner of the multi-family dwelling came downstairs from the second floor apartment. After speaking with the agents, the landlord told Juan to get the grandfather. 117. When Juan returned to the entryway of his apartment, he discovered that all the John Doe ICE Agents had entered the apartment behind him. Upon information and belief, the ICE Agents entered without a judicial warrant, any occupant’s voluntary informed consent, and in the absence of probable cause or exigent circumstances.
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118. While detaining the occupants of the house, a number of the John Doe ICE Agents interrogated the grandfather about his immigration status.
119. While detaining Juan in the kitchen, the agents demanded identification. Juan produced his valid North Carolina driver’s license.
120. None of the John Doe ICE Agents asked Juan at that time, or at any other time while they were in the home, about his immigration status.
121. The agents contacted other ICE personnel to inquire whether there was an outstanding deportation order for Juan. Upon information and belief, the agents were informed that Juan did not have an outstanding deportation order against him.
122. Juan heard the agent who had questioned him suggest to other agents that he should not be arrested. However, a second agent, who upon information and belief was senior to the first agent, ordered that Juan be arrested.
123. In the absence of a warrant, probable cause, exigent circumstances, or a reasonable basis for believing that Juan was not a United States citizen or was unlawfully present in the United States, one or more of the John Doe ICE Agents arrested Juan.
124. The John Doe ICE Agents handcuffed his wrists and ankles and put a beltcuff around his waist. The agents then escorted Juan to a van waiting outside the home and transported him to the detention facility in Elizabeth, New Jersey.
Veronica Covias 125. Veronica Covias is a lawful permanent resident of the United States. In March 2007, she lived with her husband and son in a two-story home in Paterson, New Jersey.
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126. At approximately 4:00 a.m. on or about March 26, 2007, the family awoke to loud, repeated pounding on their front door and shouts of “Paterson Police!” Veronica went downstairs and opened the door a crack, thinking that there was an emergency. At the door were several defendant John Doe ICE Agents. She asked what they wanted.
127. Defendants John Doe ICE Agents stated that they just wanted to talk to Veronica. Veronica asked if they had a warrant. The agents did not answer her question, instead repeating they “just want to talk to her.” Before Veronica could respond, a John Doe ICE Agent put his foot in the crack of the door, pushed the door open, and forced his way into the home. Veronica did not give voluntary, informed consent to this entry. Upon information and belief, the agents did not possess a judicial warrant.
128. Four or five John Doe ICE agents entered into the home, displaying batons. They wore uniforms with “ICE” printed on the back.
129. Without seeking or obtaining consent, two John Doe ICE Agents searched each room on the first floor of the home. The female agent detained Veronica, and two other agents went upstairs.
130. Veronica asked the agents if she could go upstairs to look after her husband who was sick in bed. An agent told her she had to remain detained on the first floor and could not go to see him. The agent stated that they would take her husband “as he is.” She heard the agents yelling at her son upstairs.
131. Veronica then saw her son coming down the stairs handcuffed at his wrists and ankles. She begged the agents repeatedly to tell her where they were taking her son. They refused to answer. She pleaded for permission to hug her son goodbye, but the
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agents pushed her aside and took her son outside to an unmarked van. They prevented Veronica from running out of the house after her son by closing the door on her.
132. After being held in solitary confinement for approximately three days in Georgia, Veronica’s son was deported.
Carla Roe 1 133. In August 2007, plaintiff Carla Roe 1 resided in a home in Hudson County, New Jersey. Also residing in the home were Carla Roe 1’s husband and the couple’s two young children, both of whom are United States citizens. 134. Around 6:30 a.m. one morning in August 2007, Carla Roe 1 and her husband were startled by loud knocking at their front door. 135. The husband opened the front door just wide enough to see who was outside. He was confronted by three defendant John Doe ICE Agents. 136. At no point did the agents identify themselves. They stated that they were looking for a person who sold drugs, and asked to enter the home. 137. When the husband asked who the agents were looking for, the agents physically pushed the door wide open and walked straight into the home in the absence of probable cause or exigent circumstances, and without the husband’s voluntary informed consent. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home. 138. The husband called for Carla Roe 1 to come downstairs and also asked her to call her brother. When Carla Roe 1 came down the stairs and saw the agents, she stated clearly that that the agents did not have permission to be in her home. The agents falsely indicated that her husband had given them permission to enter. Carla Roe 1 asked
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her husband if he had let the agents in. He responded in Spanish that he had not given the agents permission to enter, but that they had pushed their way in.
139. Carla Roe 1 asked the agents to speak quietly to avoid waking her two sleeping children (both United States citizens), but one or more John Doe ICE Agents replied that they “didn’t care about the kids” and that they could “do whatever [they] want[ed].”
140. One or more of the agents asked Carla Roe 1 for identification. She told them she did not have any. The agents told Carla Roe 1 they wanted to check her credit because they thought someone might be fraudulently using her Social Security number.
141. Carla Roe 1 told the agents she had an attorney whom she wanted to contact. One or more John Doe ICE Agents told her that she was not allowed to make any phone calls. When she asked her husband to pass her his cellular phone so she could call her attorney, one or more John Doe ICE Agents grabbed the phone from his hand.
142. One or more John Doe ICE Agents told Carla Roe 1 that if she did not have identification, they would take her into custody.
143. After Carla Roe 1 explicitly told the agents that they did not have consent to be in her home, the agents searched the entire ground floor of the home with flashlights, without presenting a warrant and without voluntary informed consent, probable cause, or exigent circumstances.
144. The agents arrested Carla Roe 1 and placed her in the back of their car. They did not tell Carla Roe 1 or her husband where they were taking her. They transported her to the Hudson County Correctional Center.
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145. At the correctional center, Carla Roe 1 again asked to speak with her attorney, but one or more John Doe ICE Agents forbade her from doing so.
146. After being detained for approximately two and one-half months, Carla Roe 1 was deported to Mexico.
Carlos Roe 2 and Carla Roe 2 147. Carla Roe 2 lived with her son Carlos Roe 2, and several other individuals in a three-story home in Morris County, New Jersey. 148. One morning in June 2007, at approximately 6:45 a.m., Carla Roe 2 heard loud, aggressive banging on the front door. As she opened the door to see who was there, three defendant John Doe ICE Agents, with guns drawn, forced their way into the home and physically pushed Carla Roe 2 outside. The agents entered the home in the absence of probable cause or exigent circumstances, and without Carla Roe 2’s consent. Upon information and belief, they lacked a judicial warrant for the entry and subsequent search. 149. Carla Roe 2 re-entered her home, following the agents. 150. The agents grabbed Carla Roe 2, pulled her up the stairs, and pushed her down onto a couch. The agents proceeded to the third floor while a John Doe ICE Agent detained Carla Roe 2 on the second floor. 151. On the third floor, the agents found Carlos Roe 2, a high school student, coming out of the bathroom in his underwear. Without reasonable basis to believe he was not a United States citizen, the agents grabbed him and handcuffed him. A John Doe ICE Agent pointed his gun at Carlos Roe 2, while a female agent restrained Carlos Roe 2. 152. Without explanation, the agents asked him if he had any papers. Carlos Roe 2 responded that he had papers from high school, and that the agents could contact
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his high school. When the agents stated that they did not mean those types of papers, Carlos Roe 2 responded that he did not have any other papers.
153. During this search and seizure, the phone rang. One of the agents looked at the “caller ID” and asked Carla Roe 2 about the caller whose name appeared on the phone display; Carla Roe 2 did not respond. The agent then wrote down every name and number recorded in the “caller ID” function of Carla Roe 2’s home phone.
154. While the agents were focused on Carlos Roe 2, Carla Roe 2 used the phone to call a family member. When the agents realized she was on the phone, a John Doe ICE Agent grabbed the phone from her and forcefully pulled it out of the wall and hid it in the refrigerator.
155. The agents pushed Carla Roe 2 onto the couch and the female agent yelled abusive language, including “Fuck you!” and “You are a piece of shit!”
156. A John Doe ICE Agent took Carlos Roe 2 outside. Two John Doe ICE Agents stayed in the home.
157. Carla Roe 2 became visibly upset and distressed. An agent ordered her to be quiet and sit down, and then shoved a gun in her chest to make her sit down.
158. Anxious for the officers to leave, she told them to “arrest [her] already.” John Doe ICE Agent taunted, “Why don’t you go back to your own country!” The agents left, without telling her where they had taken her son.
159. The agents placed Carlos Roe 2 in an unmarked vehicle. At no point did they read him his rights or advise him that he could speak with an attorney. They transported Carlos Roe 2 to a police station, where they questioned him for approximately thirty minutes and asked him to identify individuals in photographs.
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160. The agents repeatedly asked Carlos Roe 2 if he was a gang member or sold drugs, both of which he denied. He has never had any connection whatsoever with any gang and has not been charged with crimes in connection with gang activity.
161. Carlos Roe 2 was taken to ICE Headquarters in Newark for six hours, and then brought before a judge, who set bond at $20,000. He was detained in a facility in Hudson County for two months.
Carla Roe 3 162. Carla Roe 3 lived in Salem County, New Jersey with her husband, three U.S.-citizen children, and several other relatives. 163. At approximately 3:00 a.m. one day in August 2006, Carla Roe 3 and her husband, asleep in their home, awoke to loud knocking on their door. The individuals outside repeatedly yelled “Open the front door!” Carla Roe 3 responded “no.” 164. Eventually, Carla Roe 3’s husband walked down the steps to the front door and opened it to see what the callers wanted. Carla Roe 3 saw defendants John Doe ICE Agents and John Loe Penns Grove Officers, who were wearing bullet-proof vests and carrying guns. 165. Carla Roe 3 recognized among the law enforcement officials a female Spanish-speaking local police officer from the Penns Grove Police Department. In addition, upon information and belief, Carla Roe 3’s husband recognized a black male local police officer from the Penns Grove Police Department. 166. John Doe ICE Agents and John Loe Penns Grove Officers told Carla Roe 3’s husband that they were looking for a particular individual, who was Carla Roe 3’s brother. Without waiting for a response, the agents pushed the husband up the stairs and
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shoved him into the kitchen counter inside the home. They also shoved Carla Roe 3 out of the way. All John Doe ICE Agents and John Loe Penns Grove Officers had their guns drawn when they entered the home. All agents kept their guns drawn for the duration of the raid, except for the local police officer that Carla Roe 3 recognized, who holstered it once she saw Carla Roe 3. Neither Carla Roe 3 nor her husband gave consent to the defendants’ entry of their home. Several John Doe ICE Agents and/or John Loe Penns Grove Officers remained outside.
167. Once inside the home, a John Doe ICE Agent handcuffed the husband and again asked where Carla Roe 3’s brother was. The husband replied that he had been deported two to three years earlier. Upon information and belief, a minimal search of DHS records would have revealed that the brother had already been deported. It was unreasonable for the agents to believe that the brother would be in the house.
168. A John Doe ICE Agent called for back-up and at least another twelve John Doe ICE Agents came into the home. Numerous law enforcement officers remained outside around the perimeter of the home.
169. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home. Nevertheless, the agents, lacking probable cause or exigent circumstances, detained Carla Roe 3 on the couch in an intimidating manner, with one or more agents pointing their guns at her and indicating that she was not free to leave. The agents repeatedly asked whether Carla Roe 3 or her husband had weapons or drugs. Both Carla Roe 3 and her husband replied “no” each time. The agents also told Carla Roe 3 and her husband to identify the other people living in the home.
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170. The agents proceeded to search the entire home without voluntary informed consent, probable cause, or exigent circumstances. On information and belief, upon encountering Carla Roe 3’s sleeping relative, one agent put a gun to his head and shouted “Wake up!” The agents handcuffed several of Carla Roe 3’s relatives and brought them into the common area.
171. Carla Roe 3 begged the agents not to go into her children’s bedrooms because she did not want them to be frightened. Against her pleas, the agents searched inside both rooms where her U.S.-citizen children were sleeping.
172. When Carla Roe 3 tried to ask the agents questions, they refused to answer. They repeatedly screamed “Shut up!” at her and other occupants of the house.
173. One or more of the John Doe ICE Agents asked Carla Roe 3 for identification. She presented her Mexican passport, which the agents confiscated and have never returned to her. As a result of this seizure, Carla Roe 3 had to later go to the Mexican consulate to obtain a new passport, at her own expense and inconvenience.
174. A John Doe ICE Agent threatened Carla Roe 3 that if she did not go to “the office” she would be deported to Mexico and that the state would take her children. In addition, the agent said he would make it his “personal mission” to ensure her husband went to jail for 22 years for crossing the border. The agents then arrested her husband, and two other occupants of the house. All three were subsequently deported.
Carlos Roe 4 175. Plaintiff Carlos Roe 4 is of Russian origin and is married to a United States citizen.
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176. At approximately 5:30 a.m. one day in September 2007, John Doe ICE Agents knocked on the front door of Carlos Roe 4’s two-bedroom apartment in Passaic County, New Jersey.
177. Carlos Roe 4’s friend, visiting for a week from out of town, opened the door and was confronted by two defendant John Doe ICE Agents.
178. Carlos Roe 4 rushed to the door to see who was there. Suddenly, there were approximately nine John Doe ICE Agents at the door. One agent forced the door open with her back and barred exit from the apartment with her foot and arm.
179. A defendant John Doe ICE Agent stated to Carlos Roe 4 that they were looking for a man named Jose Morales, who had been fraudulently using Carlos Roe 4’s mailing address. The agent showed Carlos Roe 4 a hand-drawn picture of a man, sketched on plain paper, which looked to Carlos Roe 4 like a child’s drawing.
180. Carlos Roe 4 told the agents he had lived in his apartment for seven years and had never seen any mail for Jose Morales and did not know him. The John Doe ICE Agents then changed their story and said that they were going door-to-door to find Morales.
181. Without voluntary informed consent, probable cause or exigent circumstances, and (on information and belief) without a judicial warrant, the agents entered and searched the home. They visibly displayed their guns.
182. Carlos Roe 4 was stunned and frightened. He was not free to leave his apartment because the female agent was blocking the front door, and the presence of multiple armed agents in his home also made him feel that he was not free to leave.
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183. The agents demanded identification from Carlos Roe 4 and his friend. Upon information and belief, they called Carlos Roe 4’s name into their radio and learned he had no outstanding deportation order. One John Doe ICE Agent brought the friend’s identification outside and another John Doe ICE Agent said, “It’s him.”
184. Two John Doe ICE Agents searched through the friend’s room and belongings, including inside drawers and suitcases.
185. While one still blocked the front doorway, the other agents searched the rest of Carlos Roe 4’s home. The female agent flipped through his books and another John Doe ICE Agent rummaged through his mail, asking him questions about his previous roommate whose name appeared on some mail items.
186. The agents then arrested the friend and took him outside, telling Carlos Roe 4 that they were just checking his friend out and would return him shortly. The friend remains detained at the Elizabeth, New Jersey immigration detention facility.
The Pervasiveness of ICE Raids Practices 187. The nationwide pattern and practice of unlawful raids of the type plaintiffs experienced has been the subject of widespread media reporting as well as multiple lawsuits filed in other federal district courts. See, e.g., Barrera v. Boughton, No. 07-cv1436 (D. Conn. Sept. 26, 2007); Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sep. 20, 2007); Flores-Morales v. George, No. 07-cv-0050 (M.D. Tenn. July 5, 2007); Reyes v. Alcamtar, No. 07-cv-2271 (N.D. Cal. Apr. 26, 2007); Mancha v. ICE, No. 06-cv-2650 (N.D. Ga. Nov. 1, 2006). 188. Members of Congress have also directly questioned DHS about the raids practice. In a letter dated June 11, 2007, three members of Congress raised direct
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concerns about ICE home raids undertaken in New Haven, Connecticut on June 6, 2007, in which ICE agents “pushed their way into homes” without search warrants, and “treated both adults and children inappropriately.” The letter asked why, despite stated DHS policy, only four of the 31 individuals arrested were actually “fugitives” with outstanding deportation orders.
189. The raids practice has also been criticized by the United Nations Special Rapporteur on the Human Rights of Migrants in his most recent report on the United States. See Report of Special Rapporteur Jorge Bustamante A/HRC/7/12/Add. 2 (Mar. 5, 2008) at 16-17 (noting ICE agents’ “frequent disregard of due process” and reporting victims’ stories that agents entered homes without warrants, denied occupants access to lawyers, and coerced them to sign voluntary departure agreements).
190. Reports of ICE raids – and their often concomitant abuses – have been particularly prevalent in the state of New Jersey. Since March 2006 ICE home raids have been reported across the state, including in Metuchen on May 24, 2006;6 Woodbridge on May 24, 2006;7 multiple towns between May 26 and June 14, 2006;8 Edison on May 24, 2006;9 Penns Grove on August 1, 2006; Clifton on November 13, 2006; Atlantic City on

6

See id.

7

See id.

8

See Jennifer Lee and Julia Mead, 2,100 are Arrested on Immigration Violations,

N.Y. Times, June 15, 2006.

9

See ICE Press Release, ICE operation arrests 32 fugitives hiding in Edison, New

Jersey: Surveillance by ICE offices indicates some fugitives were working together to

defy the law, May 24, 2006, www.ice.gov/pi/news/newsreleases/articles

/060524edison.htm; John Dunphy, They can run, but they can't hide for long: Homeland

Security Division Cracks Down On Illegal Immigrants, The Sentinel, May 31, 2006;

Brian Donohue, Raids leave gaps in a thriving community: Immigration laws target

Indonesians, The Star-Ledger, July 9, 2006.

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November 13-19, 2006;10 Bridgeton on January 29, 2007; Vineland on February 1, 2007;11 Bridgeton on February 1, 2007;12 Englewood on March 26, 2007;13 Paterson on March 26 or 27, 2007; Cliffside Park in April 2007;14 Newark in April 2007;15 Morristown on June 6, 2007;16 Emerson on June 20, 2007;17 Hillsdale on June 20, 2007;18 Westwood on June 20, 2007;19 Penns Grove in August 2007; Union City in August 2007; Buena on August 29, 2007;20 Fair Lawn in September 2007; 21 Paterson on September 21, 2007; Newark on December 7, 2007; Princeton on December 7, 2007;22 North Bergen on January 29, 2008; and Passaic on February 19, 2008.23

10 See Derek Harper, Immigration officials make 137 arrests around N.J., Atlantic

City Press, Nov. 21, 2006. 11 See Miles Jackson, Immigration Agents Spook City Residents, The Daily Journal

(Vineland, N.J.), Feb. 2, 2007.

12

See id.

13 See Lucas Sanchez, ICE Raid in Englewood, Blog at Blue Jersey.com, Mar. 26,

2007 (http://www.bluejersey.com/showDiary.do?diaryId=4373). 14 Elizabeth Llorente, Suits: Feds play dirty; Immigration officials say raids on

illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008.

15

Id.

16 Nancy Rosenstock, 'La Migra' Grabs 7 in New Jersey, The Militant, June 25,

2007; Daily Record Staff Report, Morris Gang, Immigration Raid Nets 7, The Daily

Record, June 7, 2007. 17 See Elizabeth Llorente, 18 Reputed Gang Members Arrested, The Record

(Hackensack, N.J.), June 22, 2007 (accessed on LexisNexis.com, Mar. 11, 2008).

18

See id.

19

See id.

20 See James Quaranta, Six Arrested in Immigration Raids, The Daily Journal

(Vineland, N.J.), August 31, 2007. 21 See Elizabeth Llorente, Suits: Feds play dirty; Immigration officials say raids on

illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008. 22 See Robert L. Ashbaugh, Princeton Borough, Editorial/Opinion, The Times of

Trenton, Jan. 7, 2008. 23 See Meredith Mandell, City Police, federal agents arrest 12 illegals; Critics:

Action violates ‘Save Haven’ measure, NJ Herald News, Feb. 20, 2008.

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Defendants’ Supervisory Responsibility Defendants Myers and Torres
191. Defendants Myers and Torres oversaw the implementation of a five-fold increase in the number of Fugitive Operations Teams in the two-year period between 2005 and 2007. They also approved a remarkable 800% increase in the arrest quotas of each team in the corresponding period of time without providing the necessary training to prevent ICE agents – faced with these new pressures – from acting abusively and unlawfully. They facilitated the creation of a culture of lawlessness and lack of accountability within an agency they supervise.
192. In recent years, defendants Myers and Torres have been repeatedly placed on notice of the routine unconstitutional home-raid practices by ICE agents throughout the country. Specifically, defendants Myers and Torres have been sued numerous times for their roles in these practices. See e.g. Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sept. 20, 2007) (suing defendants Myers and Torres); Flores-Morales v. George, No. 07-cv0050 (M.D. Tenn. July 5, 2007) (suing defendant Myers); and Mancha v. ICE, No. 06cv-2650 (N.D. Ga. Nov. 1, 2006) (suing defendants Myers and Torres).
193. On June 11, 2007, the National Immigration Forum sent a letter to DHS Secretary, Michael Chertoff, questioning the conduct by ICE agents in New Haven home raids earlier that month. Defendant Myers responded to those allegations in a letter dated July 6, 2007, attached as Exhibit D. She acknowledged that only five of the 29 individuals arrested were fugitives. She similarly acknowledged that agents conducting residential searches and arrests routinely do not have judicially-issued warrants, and are therefore required to obtain knowing, voluntary consent before entering a home.
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However, according to defendant Myers, such consent was ensured simply by assigning a Spanish-speaking officer to each Fugitive Operations Team.
194. Defendant Torres had direct responsibility for the execution of fugitive operations within Operation Return to Sender. Like defendant Myers, he was made aware of unconstitutional home-raid practices by ICE agents through the media and lawsuits against him dating back to November 2006, and was specifically notified of unconstitutional home raid practices by officers under his supervision in New Haven, Connecticut. According to a memorandum obtained through the Freedom of Information Act, attached as Exhibit E, New Haven’s mayor called defendant Torres in June 2007 after home raids had been executed by ICE agents in New Haven. The mayor told defendant Torres about allegations that defendant Torres’s officers “barged into houses without warrants and verbally abused the people and children were manhandled.” The Mayor questioned whether defendant Torres’s office should continue to allow such home raids to be conducted with these allegations pending.
195. Despite being made aware of the of unconstitutional home-raid practices through lawsuits, congressional inquiries, repeated national media reports, and other sources, defendants Myers and Torres have not conducted any meaningful investigations into the practices, or provided any specific guidelines or training to fugitive operations agents to ensure that home entries and searches are conducted within constitutional limits. Nor have they, upon information and belief, meaningfully disciplined any officer responsible for such unconstitutional conduct. Moreover, defendants have contributed to such unlawful conduct by continuing to publicize, and laud as “successful,” their department’s dramatic increase in immigration
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arrests over the past two years, as reflected in boastful press releases touting ICE’s accomplishments. See e.g., ICE Press Releases, Newark, May 1, 2007; Apr. 2, 2007; Mar. 1, 2007; Nov. 20, 2006; Oct. 19, 2006. These press releases all indicate that the high number of arrests were made pursuant to the nationwide interior immigration enforcement strategy announced by defendant Myers and Secretary Chertoff.
Defendants Rodriguez and Weber 196. As Directors of the Newark DRO field office, defendants Rodriguez and Weber were each directly responsible for overseeing fugitive operations and the execution of “Operation Return to Sender” in New Jersey. Each of them makes frequent reports and comments on the number of arrests made by ICE agents, and speaks publicly on behalf of ICE about the implementation of “Operation Return to Sender” in New Jersey. Comments to the media by each of them regarding allegations of inappropriate action by their fugitive operations personnel, including unconstitutional home raids, suggest that defendants Rodriguez and Weber at best acquiesced in, and at worst, encouraged such behavior. For example, when defendant Weber was presented with specific allegations regarding a pattern of home raids in New Jersey conducted without search warrants or consent, he responded: “I don’t see it as storming a home… . We see it as trying to locate someone.” Elizabeth Llorente, Immigration officials say raids on illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008. 197. Upon information and belief, defendants Rodriguez and Weber each knew that ICE agents were entering and searching homes in New Jersey without search warrants and without obtaining voluntary, informed consent.
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198. Upon information and belief, defendants Rodriguez and Weber did not implement any guidelines, protocols, training, oversight, or record-keeping requirements that would ensure that officers under their supervision conducted home entries and searches within constitutional limits.
199. Upon information and belief, defendants Rodriguez and Weber have not conducted any substantial investigations into allegations of unconstitutional home raids of which they were made aware, or meaningfully disciplined any officer responsible for such unconstitutional conduct. Instead, they have simply continued to publicize ICE’s “successful” increase in New Jersey immigration arrests over the past two years, while allowing the unconstitutional means for many of the arrests to continue unchecked.
FIRST CLAIM: BIVENS CLAIM FOR UNREASONABLE HOME ENTRIES IN VIOLATION OF
THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of all plaintiffs against defendants ICE, Myers, Torres, Weber, Rodriguez,
John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30) 200. Plaintiffs reallege paragraphs 1 through 199, as if fully set forth herein. 201. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 202. By entering the homes of plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusions reasonable, one or more of defendants John Doe ICE Agents 1-60 violated plaintiffs’ Fourth Amendment rights.
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203. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-30, supervisors of the John Doe ICE Agents, participated in violating plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
204. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear training and under the pressure of sharply-increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
205. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiffs.
206. As a result of these intrusions into their homes, plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
207. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 give rise to a cause of action against them under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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SECOND CLAIM: BIVENS CLAIM FOR UNREASONABLE HOME SEARCHES IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of all plaintiffs against defendants ICE, Myers, Torres, Weber, Rodriguez,
John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30) 208. Plaintiffs reallege paragraphs 1 through 207, as if fully set forth herein. 209. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable searches of their homes by government officers. 210. By searching the homes of plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusions reasonable, one or more defendant John Doe ICE Agents 1-60 violated plaintiffs’ Fourth Amendment rights. 211. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-30, supervisors of the John Doe ICE Agents, participated in violating plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations. 212. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the pressure of sharply increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
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213. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
214. As a result of these intrusions into their homes, plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
215. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 give rise to a cause of action against them under Bivens, supra.
THIRD CLAIM: BIVENS CLAIM FOR UNREASONABLE SEIZURES IN VIOLATION OF THE
FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of plaintiffs Argueta, Chavez, Galindo, W.C., Flores, Arias, Ontaneda, Covias,
Carla Roes 2 and 3, and Carlos Roes 2 and 4, against defendants ICE, Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30)
216. Plaintiffs reallege paragraphs 1 through 215, as if fully set forth herein. 217. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable seizures. 218. By detaining plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, Carla Roes 2 and 3, and Carlos Roes 2 and 4 without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such seizures reasonable, one or more of defendants John Doe ICE Agents 1-60 violated the Fourth Amendment rights of these plaintiffs.
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219. By taking plaintiff Maria Argueta into custody for almost 36 hours, in spite of her lawful status and without a valid arrest warrant or other circumstances that would render such an arrest reasonable, one or more of defendants John Doe ICE Agents 1-60 further violated the Fourth Amendment rights of plaintiff Argueta.
220. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-30 participated in violating plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
221. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the pressure of sharply increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
222. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
223. As a result of these detentions, plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, Carla Roes 2 and 3, and Carlos Roes 2 and 4 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
224. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 give rise to a cause of action against them under Bivens, supra.
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FOURTH CLAIM: BIVENS CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of plaintiffs Chavez, Galindo, W.C., Carla Roes 2 and 3, and Carlos Roe 2 against defendants ICE, Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60,
and John Soe ICE Supervisors 1-30) 225. Plaintiffs reallege paragraphs 1 through 224, as if fully set forth herein. 226. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from the use of unreasonable or excessive force. 227. By physically seizing plaintiff Walter Chavez and needlessly shoving him up to the door of his house and then into his house, even though he had offered no resistance to the agents, and by pointing a gun directly at Ana Galindo and nine-year old W.C., one or more of defendants John Doe ICE Agents 1-60 used excessive force against plaintiffs Chavez, Galindo, and W.C., and in doing so, violated their Fourth Amendment rights. 228. By pushing through the front door with their guns drawn and forcing their way into the home of Carlos Roe 2 and Carla Roe 2, aggressively shoving and grabbing Carla Roe 2, pulling her up the stairs, pushing her down onto a couch while yelling abusive language and pointing a gun at her chest, one or more of defendants John Doe ICE Agents 1-60 used excessive force against Carla Roe 2. One or more defendant John Doe ICE Agents 1-60 also used excessive force against Carlos Roe 2 by grabbing him, placing him in handcuffs, and detaining him at gunpoint as he came out of bathroom in his underwear. These actions violated the Fourth Amendment rights of plaintiffs Carlos Roe 2 and Carla Roe 2.
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229. By pushing through the front door of plaintiff Carla Roe 3’s home with weapons drawn, shoving her aside upon entry, and repeatedly screaming at her, and pointing a gun at her, one or more of defendants John Doe ICE Agents 1-60 used excessive force against her, and in doing so, violated the Fourth Amendment rights of plaintiff Carla Roe 3.
230. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-30, supervisors of the John Doe ICE Agents, participated in violating the plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
231. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the pressure of sharply increasing quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
232. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
233. As a result of the use of excessive force, plaintiffs Chavez, Galindo, W.C., Carla Roes 2 and 3, and Carlos Roe 2 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
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234. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 give rise to a cause of action against them under Bivens, supra.
FIFTH CLAIM: BIVENS CLAIM FOR VIOLATIONS OF SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION (On behalf of plaintiffs Chavez, Galindo, W.C., Carla Roe 2, and Carla Roe 3 against defendants ICE, Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John
Soe ICE Supervisors 1-30) 235. Plaintiffs reallege paragraphs 1 through 234, as if fully set forth herein. 236. Plaintiffs have a constitutionally protected right under the Fifth Amendment to the United States Constitution to be free from abusive government conduct that shocks the conscience. 237. By unnecessarily placing their hands on their guns in a threatening manner and then unnecessarily pointing a gun at nine-year-old plaintiff W.C. and plaintiff Galindo, screaming at plaintiff Galindo in front of her son plaintiff W.C., and in front of plaintiff W.C. threatening to take him away from his parents plaintiffs Chavez and Galindo, one or more of defendants John Doe ICE Agents 1-60 violated the Fifth Amendment substantive due process rights of plaintiffs Chavez, Galindo, and W.C., to be free from governmental conduct that shocks the conscience. 238. By unnecessarily shoving their guns into the chest of plaintiff Carla Roe 2 and verbally abusing her in an outrageous manner, including shouting “Fuck you!”, “You are a piece of shit!”, and “Why don’t you go back to your own country,” one or more of defendants John Doe ICE Agents 1-60 violated Carla Roe 2’s Fifth Amendment
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substantive due process right to be free from governmental conduct that shocks the conscience.
239. By drawing their guns during the raid on the home of plaintiff Carla Roe 3, pointing their guns at her, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of defendants John Doe ICE Agents 1-60 violated Carla Roe 3’s Fifth Amendment substantive due process right to be free from governmental conduct that shocks the conscience.
240. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-30 participated in violating the rights of plaintiffs Walter Chavez, Ana Galindo, W.C., Carla Roe 2, and Carla Roe 3, directed the John Doe ICE Agents to violate them, or had knowledge of and acquiesced in the violations.
241. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of the rights of plaintiffs Carla Roe 2 and 3; tolerated past or ongoing misbehavior of this kind; or, by fostering disrespect for the rights and dignity of individuals suspected of being undocumented immigrants to the United States, were deliberately indifferent to the risk that ICE officers would engage in the conscience-shocking practices that occurred in this case.
242. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiffs.
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243. As a result of defendants’ conscience-shocking behavior, plaintiffs Walter Chavez, Ana Galindo, W.C., Carla Roe 2, and Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
244. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 give rise to a cause of action against them under Bivens, supra.
SIXTH CLAIM: BIVENS CLAIM FOR VIOLATION OF PROCEDURAL DUE PROCESS RIGHTS TO COUNSEL UNDER THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION (On behalf of plaintiff Carla Roe 1 against defendants Myers, Torres, Weber, Rodriguez,
John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30) 245. Plaintiffs reallege paragraphs 1 through 244, as if fully set forth herein. 246. Plaintiffs have a constitutionally protected right under the Fifth Amendment to the United States Constitution to due process of law, including the right to consult with counsel regarding immigration proceedings. 247. One or more of defendants John Doe ICE Agents 1-60 violated the Fifth Amendment procedural due process rights of plaintiff Carla Roe 1 by preventing her from contacting her attorney. 248. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-30 participated in violating the rights of plaintiff Carla Roe 1, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations. 249. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of Carla Roe 1’s rights; tolerated past or ongoing misbehavior of this kind; or, by permitting
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and/or encouraging ICE agents to impede attempts by individuals suspected of being undocumented immigrants to the United States to contact attorneys to assist them, were deliberately indifferent to the risk that ICE officers would violate the Fifth Amendment due process rights of individuals suspected of being undocumented immigrants to the United States.
250. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 1.
251. As a result of defendants’ obstruction of her attempts to contact her attorney, plaintiff Carla Roe 1 suffered harms, including but not limited to loss of liberty and emotional distress.
252. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 give rise to a cause of action against them under Bivens, supra.
SEVENTH CLAIM: BIVENS CLAIM FOR VIOLATION OF EQUAL PROTECTION OF THE LAWS
UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Ontaneda against defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30)
253. Plaintiffs reallege paragraphs 1 through 252, as if fully set forth herein. 254. Plaintiffs have a constitutionally protected right under the Fifth Amendment to the United States Constitution to due process of law, which includes equal protection of the laws.
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255. Upon request, plaintiff Juan Ontaneda provided to one or more of defendant John Doe ICE Agents 1-60 a valid driver’s license, and defendants had no reason to suspect that Mr. Ontaneda had committed any crime or was not a United States citizen. In spite of this utter lack of individualized suspicion, one or more of the John Doe ICE Agents arrested Mr. Ontaneda, apparently for no other reason than his race or ethnicity, in violation of Mr. Ontaneda’s Fifth Amendment right to equal protection of the laws.
256. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-30 participated in violating the rights of plaintiff Ontaneda, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
257. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of the rights of plaintiff Ontaneda; tolerated past or ongoing misbehavior of this kind; or, by permitting and/or encouraging ICE agents to engage in the type of racial profiling that occurred in this case – i.e., the detention of individuals on the basis of their race or ethnicity, without any reason to suspect them of any illegal activity – were deliberately indifferent to the risk that ICE officers would violate the Fifth Amendment equal protection rights of individuals suspected of being undocumented immigrants to the United States.
258. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 were intentional, malicious,
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reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Ontaneda.
259. As a result of his arrest on the basis of his race or ethnicity alone, plaintiff Juan Ontaneda suffered harms, including but not limited to loss of liberty, humiliation and emotional distress.
260. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 give rise to a cause of action against them under Bivens, supra.
EIGHTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE HOME ENTRY IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
261. Plaintiffs reallege paragraphs 1 through 260, as if fully set forth herein. 262. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 263. By entering the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusion reasonable, one or more of defendant John Loe Penns Grove Officers 1-10 violated the Fourth Amendment rights of plaintiff Carla Roe 3. 264. As a result of this intrusion into her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
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265. The actions of defendants John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
NINTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE HOME SEARCH IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
266. Plaintiffs reallege paragraphs 1 through 265, as if fully set forth herein. 267. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 268. By searching the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendant John Loe Penns Grove Officers 1-10 violated the Fourth Amendment rights of plaintiff Carla Roe 3. 269. As a result of this search of her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress. 270. The actions of defendants John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
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TENTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE SEIZURE IN VIOLATION OF
THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10) 271. Plaintiffs reallege paragraphs 1 through 270, as if fully set forth herein. 272. Plaintiffs have a constitutionally protected right under the Fourth
Amendment to the United States Constitution to be free from unreasonable seizures. 273. By detaining plaintiff Carla Roe 3 without a valid arrest warrant or other
circumstances (such as probable cause and exigency) that would render such seizure reasonable, one or more of defendant John Loe Penns Grove Officers 1-10 violated the Fourth Amendment rights of plaintiff Carla Roe 3.
274. As a result of her detention, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
275. The actions of defendants John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
ELEVENTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
276. Plaintiffs reallege paragraphs 1 through 275, as if fully set forth herein. 277. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from the use of unreasonable or excessive force.
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278. By pushing through the front door of plaintiff Carla Roe 3’s residence with their weapons drawn, shoving her aside upon entry, pointing a gun at her, and repeatedly screaming at her, one or more of defendants John Loe Penns Grove Officers 110 used excessive force against her, and in doing so, violated her Fourth Amendment rights.
279. The actions of defendants John Loe Penns Grove Officers 1-10 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
280. As a result of this excessive force, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
TWELTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR VIOLATION OF SUBSTANTIVE DUE PROCESS
RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10) 281. Plaintiffs reallege paragraphs 1 through 280, as if fully set forth herein. 282. Plaintiffs have a constitutionally protected right under the Fourteenth
Amendment to the United States Constitution to be free from abusive state government conduct that shocks the conscience.
283. By drawing their guns on plaintiff Carla Roe 3, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of defendant John Loe Penns Grove Officers 1-10 violated plaintiff Carla Roe 3’s Fourteenth Amendment substantive due process right to be free from state government abuse that shocks the conscience.
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284. As a result of defendants’ conscience-shocking behavior, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
285. The actions of defendant John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
THIRTEENTH CLAIM: CLAIM FOR UNREASONABLE HOME ENTRY IN VIOLATION OF ARTICLE
I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
286. Plaintiffs reallege paragraphs 1 through 285, as if fully set forth herein. 287. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 288. By entering the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendants John Loe Penns Grove Officers 1-10 violated the rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7. 289. As a result of this intrusion into her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
FOURTEENTH CLAIM: CLAIM FOR UNREASONABLE HOME SEARCH IN VIOLATION OF ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
290. Plaintiffs reallege paragraphs 1 through 289, as if fully set forth herein.
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291. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable searches, including unreasonable searches of their homes by government officers.
292. By searching the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendants John Loe Penns Grove Officers 1-10 violated the rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7.
293. As a result of this search of her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
FIFTEENTH CLAIM: CLAIM FOR UNREASONABLE SEIZURES IN VIOLATION OF ARTICLE I,
PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
294. Plaintiffs reallege paragraphs 1 through 293, as if fully set forth herein. 295. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable seizures. 296. By detaining plaintiff Carla Roe 3 without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such a seizure reasonable, one or more of defendants John Loe Penns Grove Officers 1-10 violated rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7. 297. As a result of this detention, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
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SIXTEENTH CLAIM: CLAIM FOR USE OF EXCESSIVE FORCE IN VIOLATION OF ARTICLE I,
PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
298. Plaintiffs reallege paragraphs 1 through 297, as if fully set forth herein. 299. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from the use of excessive force by government officers. 300. By pushing through the front door of plaintiff Carla Roe 3’s residence with their weapons drawn, shoving her aside upon entry, pointing a gun at her, and repeatedly screaming at her, one or more of defendants John Loe Penns Grove Officers 110 used excessive force against her, and in doing so, violated the rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7. 301. As a result of the use of excessive force, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation and emotional distress.
SEVENTEENTH CLAIM: CLAIM FOR VIOLATION OF FUNDAMENTAL FAIRNESS AND DUE PROCESS OF LAW PROVIDED BY ARTICLE I, PARAGRAPH 1 OF THE NEW
JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
302. Plaintiffs reallege paragraphs 1 through 301, as if fully set forth herein. 303. Article I, Paragraph 1 of the New Jersey Constitution provides that “[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” 304. The actions of one or more of defendants John Loe Penns Grove Officers 1-10 in unlawfully entering and searching plaintiff Carla Roe 3’s home, and seizing her,
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violated her right to be free from unjust, fundamentally unfair, and arbitrary government action.
305. By drawing their guns during the raid of plaintiff Carla Roe 3’s home, pointing a gun at her, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of defendants John Loe Penns Grove Officers 1-10 further violated plaintiff Carla Roe 3’s N.J. Const., Art. I, ¶ 1 substantive due process right to be free from government abuse.
306. As a result of the conduct of defendants John Loe Penns Grove Officers 110, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request judgment against defendants as follows: (a) Compensatory and consequential damages in an amount to be determined
at trial; (b) Punitive damages on all claims allowed by law, in an amount to be
determined at trial; (c) Preliminary and permanent injunctive relief barring all further intimidation
of plaintiffs Walter Chavez, Ana Galindo, and W.C., and any and all entry into the home of plaintiffs Walter Chavez, Ana Galindo, and W.C. absent a warrant issued by a judicial officer or informed, voluntary consent by either plaintiff Chavez or plaintiff Galindo; (d) Attorney’s fees and costs associated with this action; (e) Any further relief as this Court deems just and proper and any other relief as allowed by law.
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Plaintiffs demand a trial by jury. Dated: May 22, 2008

Respectfully submitted,
By: __/s/ Baher Azmy ________________ Baher Azmy, Esq Bassina Farbenblum, Esq. Scott Michelman, Esq. SETON HALL SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, New Jersey 07102-5210 (973) 642-8709 Attorneys for Plaintiffs

___/s/ R. Scott Thompson________ R. Scott Thompson, Esq. Scott L. Walker, Esq. Heather Bishop, Esq. LOWENSTEIN SANDLER PC Attorneys At Law 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500 Attorneys for Plaintiffs

63

 
 Case 2:08-cv-01652-PGS-ES Document 16-4 Filed 05/22/2008 Page 1 of 17

Baher Azmy Bassina Farbenblum Scott Michelman Seton Hall School of Law Center for Social Justice 833 McCarter Highway Newark, NJ 07102-5210 (973) 642-8709 Attorneys for Plaintiffs

R. Scott Thompson Scott L. Walker Heather C. Bishop Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068 (973) 597-2500 Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MARIA ARGUETA; WALTER CHAVEZ; ANA GALINDO; W.C. by and through his parents Walter Chavez and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS; JUAN ONTANEDA; VERONICA COVIAS; CARLA ROE 1; CARLA ROE 2; CARLOS ROE 2; CARLA ROE 3; and CARLOS ROE 4,

DOCUMENT FILED ELECTRONICALLY

Plaintiffs,

Honorable Peter G. Sheridan, U.S.D.J. Honorable Esther Salas, U.S.M.J.

-vs-

Civil Action No: 2:08-cv-1652

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); JULIE L. MYERS, Assistant Secretary for Immigration and Customs Enforcement; JOHN P. TORRES, Deputy Assistant Director for Operations, Immigration and Customs Enforcement; SCOTT WEBER, Director, Office of Detention and Removal Operations, Newark Field Office; BARTOLOME RODRIGUEZ, Former Director, Office of Detention and Removal Operations, Newark Field Office; JOHN DOE ICE AGENTS 1-60; JOHN SOE ICE SUPERVISORS 1-30; and JOHN LOE PENNS GROVE OFFICERS 1-10,

MEMORANDUM OF LAW IN SUPPORT OF
ORDER TO SHOW CAUSE

Defendants.

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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ...................................................................................................... ii PRELIMINARY STATEMENT................................................................................................. 1 PROCEDURAL HISTORY........................................................................................................ 2 STATEMENT OF FACTS ......................................................................................................... 3 ARGUMENT ............................................................................................................................. 6
I. THE CHAVEZ FAMILY IS ENTITLED TO AN INJUNCTION PREVENTING DEFENDANTS FROM CARRYING OUT THEIR STATED INTENTION OF REPEATING A WARRANTLESS, NONCONSENSUAL AND CONSCIENCE-SHOCKING SEARCH OF THE CHAVEZ FAMILY HOME. ................................................................. 6 A. High Likelihood the Chavez Family will Prevail on the Merits at the Final Hearing.................................................................................. 7 1. The Chavez Family is likely to succeed on its Fourth Amendment Unreasonable Search & Seizure Claim ..................... 7 2. The Chavez Family is likely to succeed on its Fifth Amendment Substantive Due Process Claim ................................ 9 B. The Chavez Family will Suffer Irreparable Harm if the Injunction is Denied............................................................................... 10 C. Granting the Preliminary Injunction will not Result in Irreparable Harm to Defendants and is in the Public Interest .................. 12
CONCLUSION ........................................................................................................................ 13
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TABLE OF AUTHORITIES

CASES

PAGES

Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000)................................................................................................ 10

Am. Civil Liberties Union of N. J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996)................................................................................................ 12

Am. Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421 (3d Cir. 1994)............................................................................................ 6, 13

BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., 229 F.3d 254 (3d Cir. 2000).................................................................................................. 6

Bumper v. North Carolina, 391 U.S. 543 (1968).......................................................................................................... 7, 8

City of Los Angles v. Lyons, 461 U.S. 95, 101-02............................................................................................................ 10

Cmty. for Creative Non-Violence v. Unknown Agents of U.S. Marshals Serv., 797 F. Supp. 7 (D.D.C. 1992) ............................................................................................. 11

County of Sacramento v. Lewis, 523 U.S. 833 (1998).............................................................................................................. 9

Florida v. Royer, 460 U.S. 491 (1983).............................................................................................................. 8

Frank Russell Co. v. Wellington Mgmt. Co., LLP, 154 F.3d 97 (3d Cir. 1998).................................................................................................... 7

Good v. Dauphin Cty. Social Serv. for Children & Youth, 891 F.2d 1087 (3d Cir. 1989)................................................................................................ 7

KOS Pharm., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004)............................................................................................ 6, 12

Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002).................................................................................................. 9

Oburn v. Shapp, 521 F.2d 142 (3d Cir. 1975).................................................................................................. 7

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Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187 (3d Cir. 1990).................................................................................................. 6
Payton v. New York, 445 U.S. 573 (1980).............................................................................................................. 7
Roe v. Operation Rescue, 919 F.2d 857 (3d Cir. 1990)................................................................................................ 11
Schneckloth v. Bustamonte, 412 U.S. 218 (1973).......................................................................................................... 7, 8
Scholastic Funding Group, LLC v. Kimble, No. 07-557, 2007 WL 1231795 (D.N.J. Apr. 24, 2007)......................................................... 7
Steagald v. United States, 451 U.S. 204 (1981).............................................................................................................. 7
Storer Communications v. Mogel, 625 F.Supp. 1194 (S.D. Fla. 1985)...................................................................................... 12
TKR Cable Co. v. Cable City Corp., 1996 WL 465508 (D.N.J. 1996).......................................................................................... 12
United States v. Coles, 437 F.3d 361 (3d Cir. 2006).................................................................................................. 8
United States v. Molt, Jr., 589 F.2d 1247 (3d Cir. 1978)................................................................................................ 8
United States v. Santos, 340 F.Supp.2d 527 (D.N.J. 2004).......................................................................................... 8
United States v. United States Dist. Ct. (Keith), 407 U.S. 297 (1972).............................................................................................................. 7
Whren v. United States, 517 U.S. 806 (1996).............................................................................................................. 7
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Plaintiffs Walter Chavez and Ana Galindo, both individually and on behalf of their minor child, W.C. (collectively “plaintiffs” or the “Chavez Family”), by and through their undersigned counsel, respectfully submit this memorandum of law in support of their Order to Show Cause for a Preliminary Injunction enjoining defendants United States Immigration and Customs Enforcement (“ICE”), Julie Myers, Scott Weber, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 (collectively, “defendants”), from conducting warrantless, nonconsensual searches of the Chavez Family’s home and otherwise violating plaintiffs’ substantive due process rights under the Fifth Amendment to the United States Constitution.
PRELIMINARY STATEMENT On April 2, 2008, ICE agents conducted a lawless, armed raid of the Chavez family house. Each member of the Chavez Family is lawfully present in the United States, and defendants had no reasonable basis for believing differently. Nevertheless, a number of ICE agents forcibly entered the Chavez home, without warrant or voluntary consent, in a purported search for undocumented aliens. As part of their search, agents berated the family, displayed their firearms and pointed a gun at the Chavezes’ terrified nine-year-old son, and even threatened to take him away from his parents. Moreover, despite having no lawful basis for entering and searching the home, and despite undertaking terrifying, conscience-shocking conduct toward the family’s young child, defendants actually specifically promised to repeat their actions. Upon leaving the home, ICE agents warned unconditionally: “We’re going to come back. And next time it will be worse.” This is more than an idle threat, given the demonstrated pattern of warrantless, nonconsensual raids of immigrant homes that—as detailed in the First Amended Complaint— ICE has conducted in New Jersey and throughout the country. The Chavez Family thus seeks modest, but necessary relief. Specifically, they seek an order enjoining defendants from acting on their stated intention to repeat their
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warrantless, nonconsensual raid of plaintiffs’ home and from engaging in conscience-shocking conduct inside the home, even “worse” than the first time. Such an injunction, which merely preserves the status quo, is necessary to protect the family from being subject again to terrifying government conduct. This injunction is necessarily in the public interest and would not visit a hardship on defendants since it would only require that they act within the bounds of the Constitution should they deem it appropriate to return to plaintiffs’ home.
PROCEDURAL HISTORY On April 3, 2008, ten plaintiffs—not including the Chavez Family—filed a complaint in this Court against ICE supervisory officials and enforcement agents and several John Doe police officers employed by the town of Penns Grove, New Jersey. That complaint sought money damages for defendants’ conduct relative to raids of plaintiffs’ homes undertaken in derogation of plaintiffs’ rights under the Fourth and Fifth Amendments to the United States Constitution and the New Jersey State Constitution. Shortly thereafter, defendants were served with summonses and copies of the complaint, which has not yet been answered. Plaintiffs’ First Amended Complaint is identical to the original complaint except for the addition of claims on behalf of the Chavez Family, whose home was raided by ICE agents just one day before the original complaint was filed. Because the Chavez Family seeks injunctive relief (not just money damages), ICE has been added as defendant and—for those injunctive claims only—the individual federal defendants have been sued in their official capacities. In sum, the First Amended Complaint adds the claims of yet another family swept up in ICE’s ongoing pattern and practice of warrantless, nonconsensual raids and seeks to prevent the government from fulfilling its promise to return and engage in an even “worse” raid of that family’s home.
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STATEMENT OF FACTS Walter Chavez and Ana Galindo have lived in the United States for approximately 28 years and are lawful permanent residents. Their nine-year-old son, W.C., is a United States citizen. Walter and Ana own a home in Paterson, New Jersey, where they lived at all times relevant to this action. On the morning of April 2, 2008, at approximately 7:15 am, Walter was returning to his home to pick up something for work when six or more unmarked vehicles converged on his house. Two defendant John Doe ICE Agents emerged from one of the vehicles and ran up to Walter’s vehicle. One of them grabbed Walter by the shirt collar and pulled him out. Without identifying themselves, they demanded his name. Walter told them his name. The officers asked to see Ana Galindo. They then physically pushed Walter with their hands toward the front door of his home. Walter asked them why they wanted his wife. One of the John Doe ICE Agents replied, “We’ll tell you when you’re inside. Don’t make things harder. Just tell me where she is.” As the agents pushed Walter up to his front door, one of the John Doe ICE Agents said to Walter, “If you don’t open the door, we’re going to make things worse.” The officers made Walter open the door and shoved him into the house. At least seven defendant John Doe ICE Agents ran inside the house. Three of the agents prevented anyone from leaving by blocking the front door. More John Doe ICE Agents remained outside. At no point did the agents identify themselves. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home. As he got into his house, Walter called out to his wife who was in the shower, “Ana – the police are looking for you!” Ana ran out of the bathroom and threw a shirt on but did not have time to properly dress. One John Doe ICE Agent ran over to Ana and kept yelling at her, “Where are the illegal people?” Another agent was asking Walter the same question at the
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same time. One of the agents said, “It’s illegal to be hiding illegals. If you don’t tell me where they are, things will get worse. If you don’t tell me where they are, we’ll arrest you.”
A female agent asked Ana where her sisters were, what their names were, and what Ana’s last name was. Ana replied that she had two sisters in Guatemala, and gave their names and her own. An agent said, “This is not the person we’re looking for.”
Having heard the agents shouting at his parents, W.C. came out of his bedroom and ran to his mother, crying. As he did, several of the John Doe ICE Agents opened their jackets and displayed their guns. Some of the agents wore two guns (one on each hip), along with bulletproof vests and clothing imprinted with the acronym “ICE.” Upon seeing the child emerge, at least four agents placed their hands on their guns.
One of the agents grabbed his gun and pointed it directly at Ana and W.C. W.C. saw the guns and continued to cry. As Ana held her terrified son and tried to calm him, an agent came over and screamed in her face again, “Where are the illegal people?”
In front of W.C., an agent said to Ana, “If you’re hiding illegal people here, we’re going to take your son and your residency away.” One of the ICE agents guarding the front door was repeatedly pounding one of his fists into an open hand while glaring menacingly at Ana and W.C. Ana told her son to go to his room.
The agents demanded that Ana produce identification. When she went to the bedroom to get it, she found her son hiding under the pillows. When she came back to the living area, she showed the agents her New Jersey driver’s license, as well as her and Walter’s green cards, and her son’s United States passport.
An agent again accused Ana of hiding illegal immigrants; Ana replied that only she, Walter, and their son lived in the house.
Throughout the raid, the agents remained in the living room and the hallway to the bedrooms. One of the agents looked through Walter and Ana’s family pictures. Several of the agents’ cars had driven up onto Walter’s lawn, which he had spent much time and effort fixing. At no point did the agents produce a warrant or ask for or obtain permission for anything
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the agents did, including entering the home. Before leaving, one of the agents directly announced, “We’re going to come back. And next time it will be worse.”
W.C. was and remains severely traumatized by the raid. He is so afraid the agents will return and may kill him and his parents, that to this day he refuses to sleep alone in his bedroom and insists on sleeping with his mother. Since the raid, W.C. has been shaking and crying in his sleep at night. Once he woke up in the night and told Ana he was too afraid to go back to sleep.
Before the raid, W.C. would often play after school, but for days following the raid he just came home, ate, and went to bed. To this day, he cries often. He often asks Walter and Ana to turn off all the lights and close the shades to prevent the agents from coming back. W.C. is scared when the lights are on in the house. He used to be excited when the doorbell to his house rang; since the raid, he becomes scared every time he hears it. He has asked his father why the agent that was in the doorway, who was pounding his fist into his hand, was looking at him during the raid. Walter, Ana, and W.C. all continue to be afraid that the agents will return to the house, just as they said they would.
As detailed at length in the Amended Complaint, defendants’ raid of the Chavez Family’s home is consistent with a pattern and practice throughout New Jersey and elsewhere. (Amended Complaint at ¶¶ 34-199) More particularly, as in the case of the Chavez Family, ICE officers have repeatedly engaged in warrantless, nonconsensual raids of the homes of suspected illegal immigrants. (Id. at ¶¶ 39-48, 187-90) This conduct has occurred—and appears to be continuing unabated—notwithstanding widespread public reports of the abuses of ICE officers. (Id. at ¶¶ 47, 187-90, 192-95) For this reason, plaintiffs fear that defendants are certain to make good on their threat to return to their home and engage in further abusive, unconstitutional conduct.
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ARGUMENT I. THE CHAVEZ FAMILY IS ENTITLED TO AN INJUNCTION
PREVENTING DEFENDANTS FROM CARRYING OUT THEIR STATED INTENTION OF REPEATING A WARRANTLESS, NONCONSENSUAL AND CONSCIENCE-SHOCKING SEARCH OF THE CHAVEZ FAMILY HOME.
Following their warrantless entry and search of the Chavez home, the defendant John Doe ICE Agents unconditionally warned the Chavez family that: “We’re going to come back. And next time it will be worse.” The Chavez Family thus seeks a court order preventing defendants from carrying out their stated intention of violating plaintiffs’ constitutional rights a second time.
It is well settled in the Third Circuit that parties seeking injunctive relief must demonstrate: (1) a reasonable probability of likelihood of success on the merits; (2) that they will suffer irreparable harm absent the injunction; (3) granting the injunction will not result in irreparable harm to defendants (i.e., the balance of harms favors plaintiffs); and (4) that the public interest favors such relief. KOS Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004); Am. Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994). In determining whether to issue an injunction, the Court is required to balance these four factors to determine whether a preliminary injunction is appropriate. BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., 229 F.3d 254, 263 (3d Cir. 2000). Moreover, the purpose of a preliminary injunction is to preserve the status quo during the pendency of the litigation. Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990) (citation and quotation omitted). Applying these four factors to the facts presented by the Chavez Family’s claims, a preliminary injunction is necessary to preserve the status quo by preventing defendants from engaging in another warrantless, nonconsensual raid of the Chavez Family’s home—something defendants have specifically threatened to do.
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A. High Likelihood the Chavez Family will Prevail on the Merits at the Final Hearing To establish a likelihood of success on the merits in connection with a preliminary
injunction, the moving party is required to demonstrate only a “reasonable probability” of prevailing. Frank Russell Co. v. Wellington Mgmt. Co., LLP, 154 F.3d 97, 101 (3d Cir. 1998). Thus, at this stage of the litigation, the Chavez Family need not prove its case with absolute certainty. The relevant inquiry is only whether the Chavez Family has made out a prima facie case in support of its constitutional claims. Scholastic Funding Group, LLC v. Kimble, No. 07557, 2007 WL 1231795 at *4 (D.N.J. Apr. 24, 2007) (citing Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975)). The facts pled here demonstrate that the Chavez Family has made out a prima facie case that defendants violated, and explicitly threatened to continue violating, their rights under the Fourth and Fifth Amendments.
1. The Chavez Family is likely to succeed on its Fourth Amendment Unreasonable Search & Seizure Claim
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Whren v. United States, 517 U.S. 806, 809 (1996) (quoting U.S. Const. Amend. IV). Because the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” United States v. United States Dist. Ct. (Keith), 407 U.S. 297, 313 (1972), the home receives heightened Fourth Amendment protections, and “searches and seizures inside a home without a warrant are presumptively unreasonable,” Payton v. New York, 445 U.S. 573, 586 (1980). Thus, absent consent or exigent circumstances, it is unreasonable for government agents to enter a home to conduct a search or to execute an arrest without a valid warrant. See Steagald v. United States, 451 U.S. 204, 211 (1981); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Good v. Dauphin Cty. Social Serv. for Children & Youth, 891 F.2d 1087, 1092-93 (3d Cir. 1989). To meet the consent exception to the warrant requirement the government has the burden of establishing that any alleged consent was freely and voluntarily given. Schneckloth, 412 U.S. at 222; Bumper v. North Carolina, 391 U.S. 543, 549 (1968). The Supreme Court has
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held that the voluntariness of the consent given to search is a question of fact to be determined from the totality of the circumstances:
[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. Schneckloth, 412 U.S. at 227. Each inquiry is fact sensitive and no one factor is determinative. Nevertheless, courts have deemed consent invalid when the government obtained such consent through misrepresentations, coercive tactics, and improper assertions of authority. Florida v. Royer, 460 U.S. 491, 507-08 (1983) (holding illegal seizure invalidates individual’s subsequent consent); Schneckloth, 412 U.S. at 227, 233 (holding coercive tactics alone can invalidate consent); Bumper, 391 U.S. at 548-49 (holding individual’s mere acquiescence to assertion of police authority generally does not amount to voluntary consent); United States v. Molt, Jr., 589 F.2d 1247, 1251-52 (3d Cir. 1978) (“When evidence exists to show that a defendant believed he must consent such evidence weighs heavily against a finding that consent was voluntarily given. And when that belief stems directly from misrepresentations by government agents, however innocently made, we deem the consent even more questionable.”). In sum, consent is only voluntary “when it is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.” United States v. Santos, 340 F.Supp.2d 527, 538 (D.N.J. 2004) (citing Schneckloth, 412 U.S. at 227). Here, the John Doe ICE Agent defendants did not present a warrant and did not obtain voluntary, informed consent to enter.1 Moreover, the officers gained entry to the home only after physically pushing Walter and threatening him, threatening that “if you don’t open the door [to the house], we’re going to make things worse.” The officers then physically pushed
1 Moreover, there are no facts surrounding the raid of the Chavez home that would support the application of the exigent circumstances exception to the warrant requirement. See United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006) (noting that the exigent circumstances exception applies where there is (1) hot pursuit, (2) imminent threat to persons or property, or (3) a threat of destruction of evidence).
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Walter into the house. Under such circumstances, Walter’s act of opening the door can hardly be construed as voluntary, informed consent to entry and search of his home.2
2. The Chavez Family is likely to succeed on its Fifth Amendment Substantive Due Process Claim
A plaintiff establishes a violation of his Fifth Amendment right to substantive due process where he shows that government “officials have been deliberately indifferent to a liberty interest and deprived [him] of that interest in such a way that the ‘behavior of the governmental officer is so egregious, so outrageous that it may fairly be said to shock the contemporary conscience.’” Leamer v. Fauver, 288 F.3d 532, 547 (3d Cir. 2002) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)). In the instant case, the behavior of the ICE agents who raided the Chavez Family home is, in fact, shocking. To be specific, the John Doe Defendant ICE Agents physically forced Walter Chavez to open the door to his home, confronted Ana Galindo in a state of semi-undress, pointed a gun at a nine-year-old child, and threatened to have that child taken away in the child’s presence. Moreover, the threat to take away Ana’s son was made after the ICE officers concluded that Ana was not the person ICE was looking for and after the officers received proof that all of the home’s residents were lawfully present in the United States. In short, the John Doe ICE Agents engaged in appalling conduct that demonstrated complete indifference to the Chavez Family’s protected liberty interest, i.e., their right to be free from unreasonable searches and seizures. The Fifth Amendment right to substantive due process is designed to protect against exactly the kind of outrageous government conduct experienced by the Chavez Family.
In sum, the unconstitutional conduct of the John Doe ICE Agents during their raid of the Chavez Family’s home and the explicit threat to return and engage in “worse” behavior are more than sufficient to establish a reasonable probability that plaintiffs will succeed on both their Fourth and Fifth Amendment claims for injunctive relief.
2 To the extent that defendants dispute the absence of voluntary, informed consent, plaintiffs respectfully request that the Court allow expedited discovery and a hearing on that issue.
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B. The Chavez Family will Suffer Irreparable Harm if the Injunction is Denied “The irreparable harm requirement is met if a plaintiff demonstrates a significant
risk that he or she will experience harm that cannot adequately be compensated after the fact by monetary damages.” Adams v. Freedom Forge Corp., 204 F.3d 475, 484-85 (3d Cir. 2000). To establish this element, the harm which will result must not be remote or speculative, but actual and imminent. City of Los Angles v. Lyons, 461 U.S. 95, 101-02. “Abstract injury is not enough. The plaintiff must show that he [or she] ‘has sustained or is immediately in danger of sustaining some direct injury’ as a result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Id. 10102 (citations omitted). Plaintiffs amply meet that burden.
First, far from mere conjecture or hypothesis by plaintiffs, defendants have actually threatened the repetition of unconstitutional activity. After conducting warrantless entry and search of plaintiffs’ home and engaging in terrorizing conduct toward the Chavezes’ young son, defendants themselves assured the Chavez family that “We’re going to come back” and that the next time their conduct would be “worse.”
Second, the actions of the ICE agents in the Chavez family home raid are consistent with the pattern and practice of warrantless, nonconsensual and frequently-abusive immigrant home raids undertaken by ICE agents pursuant to a national program denominated “Operation Return to Sender.” Pursuant to that program, ICE agents have been regularly engaging in dragnet searches and raids – typically in the pre-dawn hours and without judicial warrant, probable cause or other lawful basis under the Fourth Amendment – of the homes of immigrant families, in an attempt to locate immigrant “fugitives” who have outstanding deportation orders or arrest warrants. (Amended Complaint at ¶¶ 39-54) The aggressive and unlawful raids practices are a predictable consequence of dramatically increased “fugitive” apprehension quotas set at the highest levels of the Department of Homeland Security. (Id. at ¶¶
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Case 2:08-cv-01652-PGS-ES Document 16-4 Filed 05/22/2008 Page 15 of 17
1, 5, 36-38, 191) The raid on the Chavez family home falls squarely within this pattern of unconstitutional conduct.
This pattern and practice, combined with defendants’ stated intentions, demonstrate that when the government returns to the Chavez family home they have no intention of complying with the strictures of the Fourth and Fifth Amendments.
Other courts faced with similar facts—i.e., a pattern of warrantless, nonconsensual raids and a specific threat of return—did not hesitate to grant an injunction. See, e.g., Cmty. for Creative Non-Violence v. Unknown Agents of U.S. Marshals Serv., 797 F. Supp. 7, 16-19 (D.D.C. 1992) (issuing injunction prohibiting warrantless, nonconsensual dragnet raids of homeless shelter where government officials had engaged in pattern of such raids and had a specific threat to return to a particular shelter); see also Roe v. Operation Rescue, 919 F.2d 857, 864-65 (3d Cir. 1990) (issuing injunction against blockades of abortion clinics where there was showing that clinics faced a risk of being blockaded in future in light of Operation Rescue’s previously-stated plans, widely reported in the media, to launch “rescue missions,” and the defendants’ secretive modus operandi that avoided identification of target clinics in advance). Plaintiffs respectfully submit that the same result is appropriate here.
Finally, defendants' conduct caused severe trauma to the Chavez Family in general, and nine-year-old W.C. in particular. (Affidavit of Walter Chavez dated May 20, 2008 (“Chavez Affidavit”) at ¶¶ 27-30; Affidavit of Ana Galindo dated May 20, 2008 (“Galindo Affidavit”) at ¶¶ 19-22) Specifically, when W.C. entered the family’s living room, multiple ICE agents displayed their weapons at him, and one agent drew his gun and pointed it at Ana and W.C. (Galindo Affidavit at ¶¶ 9-10) This was understandably terrifying to the young boy and to Ms. Galindo, who feared for W.C.’s life. (Id. at ¶ 10) Soon after, an ICE agent said, in the presence of W.C., “If you’re hiding illegal people here, we’re going to take your son and your residency away.” (Id. at ¶ 11) The raid has traumatized the Chavez family, and particularly W.C. W.C. cries frequently when he thinks of the event and remains terrified that the agents will return and hurt him or his family. (Chavez Affidavit at ¶¶ 27-28; Galindo Affidavit at ¶¶ 19-20)
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All members of the Chavez family are terrified that the agents will in fact return and terrorize them once again. No amount of monetary damages can compensate plaintiffs should defendants repeat their outrageous conduct. In fact, the potential psychic damage to W.C. and his parents from a return visit by defendants is not only irreparable—it is incalculable. An injunction against future ICE unlawful behavior is thus necessary to prevent this future harm from occurring to the Chavez family.
C. Granting the Preliminary Injunction will not Result in Irreparable Harm to Defendants and is in the Public Interest A preliminary injunction is appropriate so long as “granting [such] relief will
[not] result in even greater harm to the nonmoving party.” Am. Civil Liberties Union of N. J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996). The court balances the hardships of each party, focusing on whether and to what extent each party is harmed. KOS Pharm., Inc., 369 F.3d at 727 (citation omitted). A nonmoving party does not suffer irreparable harm when an injunction enjoins that party from partaking in specific conduct proscribed by law. TKR Cable Co. v. Cable City Corp., 1996 WL 465508, at *11 (D.N.J. 1996) (citing Storer Communications v. Mogel, 625 F.Supp. 1194, 1203 (S.D. Fla. 1985) (“The alleged illegal activities of the defendant are not worthy of any protection. . . . Defendant will suffer no harm if an injunction is issued which simply requires them to obey the law”)). Defendants here cannot establish that they will suffer even greater harm than plaintiffs because the injunction sought—if granted—would require only that defendants take care to act within the bounds of the Constitution should ICE agents return to plaintiffs’ home, i.e., it only prohibits them from engaging in warrantless, nonconsensual entry, searches, and conscience-shocking conduct should they again visit the Chavez Family’s home. Put another way, defendants will not suffer a greater harm than plaintiffs simply by being forced to respect plaintiffs’ rights. Accordingly, this factor also weighs in plaintiffs’ favor.
As to the fourth factor, the Third Circuit has indicated that “if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always
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will be the case that the public interest will favor the plaintiff.” Am. Tel. and Tel. Co., 42 F.3d at 1427 n.8. For the reasons stated above, the facts alleged by plaintiffs establish a likelihood of success on the merits and irreparable harm. There is an indisputable public interest in restraining the government from continuing to violate the constitutional rights of legal residents and United States citizens like Walter, Ana and W.C. Accordingly, as predicted by the Third Circuit in Winback, this factor—like each of the other three—weighs in plaintiffs’ favor.

CONCLUSION For the foregoing reasons, plaintiffs respectfully request that the Court enter an order enjoining defendants from conducting warrantless, nonconsensual raids of the Chavez Family’s home and engaging in conduct violative of plaintiffs’ Fifth Amendment right to substantive due process.

Roseland, New Jersey Dated: May 22, 2008
Baher Azmy, Esq Bassina Farbenblum, Esq. Scott Michelman, Esq. SETON HALL SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, New Jersey 07102-5210 (973) 642-8709 Attorneys for Plaintiffs

By: /s/ R. Scott Thompson
R. Scott Thompson, Esq. Scott L. Walker, Esq. Heather Bishop, Esq. LOWENSTEIN SANDLER PC Attorneys at Law 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500 Attorneys for Plaintiffs

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 Case 3:08-cv-01652-PGS -DEA Document 94 Filed 05/07/09 Page 1 of 43 PageID: 1080

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

MARIA ARGUETA, ET AL.,

:

:

:

Plaintiffs,

:

:

v.

:

:

U.S. IMMIGRATION AND

:

CUSTOMS ENFORCEMENT, ET AL., :

:

:

Defendants.

:

____________________________________:

Civil Action No. 08-1652 (PGS) OPINION

SHERIDAN, U.S.D.J.

This matter comes before the Court on Defendants’, United States Immigration and

Customs Enforcement (ICE), et al., motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), (2)

and (6). The motion requests dismissal of certain claims on five separate grounds. Dismissal of

all claims is sought by the four named “Supervisory Defendants” only. They are (i) Julie Myers,

in her prior capacity as the Assistant Secretary for Homeland Security for ICE in Washington,

D.C. at all relevant times prior to November 15, 2008; (ii) John Torres, Acting Deputy Assistant

Secretary for Operations of ICE, and at all relevant times prior to March 5, 2008, the Director (or

Acting Director) of the ICE Office of Detention and Removal Operations (DRO) in Washington,

D.C.; (iii) Scott Weber, Director of the DRO Field Office in Newark, and (iv) Bartolome

Rodriguez, former Acting Field Office Director for the DRO Field Office in Newark. 1

1

There are a number of police officers, ICE agents and other officers who have not

been identified because Plaintiffs require discovery in order to identify these Defendants. The

motion does not involve those officers.

Case 3:08-cv-01652-PGS -DEA Document 94 Filed 05/07/09 Page 2 of 43 PageID: 1081

The five different grounds on which Defendants bring this motion to dismiss are (1) this

Court lacks jurisdiction over anonymous Plaintiffs who have filed under the Roe pseudonym; (2)

under the Immigration and Nationality Act, specifically 8 U.S.C. §§ 1252(b)(9) and 1252(g), this

Court lacks subject matter jurisdiction over claims arising from any actions taken to remove an

alien; (3) Plaintiffs seek an extension of Bivens2 beyond the present scope of the case law; (4)

this Court lacks personal jurisdiction over the two Supervisory Defendants residing in

Washington, D.C. (Myers and Torres); and (5) all Supervisory Defendants have qualified

immunity. The government at this juncture does not move to dismiss as to the individual, non-

supervisory ICE agents involved in the matters.

For the reasons set forth below, this Court:

(1) Dismisses all claims brought by the anonymous Plaintiffs subject to these Plaintiffs’

right to amend their complaint to include their identity within three weeks;

(2) Denies Defendants’ motion to dismiss claims for lack of subject matter jurisdiction

brought by the remaining Plaintiffs who may be subject to removal;

(3) Denies Defendants’ motion to dismiss Bivens claims brought by Plaintiffs believed to

be unlawful aliens;

(4) Denies Defendants’ motion to dismiss claims against the Washington, D.C.-based

Supervisory Defendants, Myers and Torres, for lack of personal jurisdiction; and

(5) Denies Defendants’ motion to dismiss claims on the ground of qualified immunity

against the four Supervisory Defendants, Myers, Torres, Weber, and Rodriguez, but will, for

now, limit discovery of these Defendants to interrogatories and a deposition each, after which

the parties may re-argue the issue of these Defendants’ qualified immunity.

2

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

2

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I. Statement of Facts This is a suit by thirteen Plaintiffs, eight of whom have been identified by name in the First Amended Complaint (FAC), while the remainder seek to proceed anonymously due to an alleged fear of retaliation. The claims of each plaintiff are strikingly similar. In each case, Plaintiffs allege that ICE agents entered their home in the early morning hours without appropriate consent and/or warrants. The gravamen of the FAC is that the ICE agents searched the homes and arrested individuals within the homes in violation of their constitutional rights3. The Plaintiffs contend that the Department of Homeland Security (Department or DHS) instituted a program known as “Operation Return to Sender” (ORTS) which “exponentially increased quotas for the arrest of immigrants” through the use of these pre-dawn “raids.” More importantly, Plaintiffs allege that the Supervisory Defendants, despite knowledge of the “unconstitutional and abusive conduct” allowed the ORTS program to continue unabated. More specifically, the Plaintiffs maintain that these Supervisory Defendants should have “develop[ed] meaningful guidelines or oversight mechanisms . . . provide[d] . . . adequate training . . . or otherwise ensured accountability” that ORTS operated within constitutional confines. With this brief background, the alleged facts of each incident are discussed below.
Maria Argueta At 4:30 a.m. on January 29, 2008, Maria Argueta was asleep in her home on the ground floor of a multi-unit apartment in a building in North Bergen, New Jersey. Since 2001, she has had Temporary Protection Status (TPS), allowing her to lawfully remain in the United States.

3

The ICE agents had an administrative arrest warrant which did not authorize entry

into a residence. (See Opinion at 19).

3

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On the morning in question, Argueta was awakened by very loud banging on the front door and windows. The banging was so loud that Argueta became frightened and did not open the door.
At the time, other tenants opened their doors to find out what the commotion was about. These tenants were confronted by ICE agents. The agents identified themselves as police (rather than ICE agents) and claimed they were looking for a criminal.
One tenant telephoned the landlord, who was Argueta’s brother, and in turn handed the telephone over to an ICE agent. The agents advised Argueta’s brother that they were searching for a male criminal, and they needed to search the ground floor apartment. Argueta’s brother called Argueta and told her that police officers wanted to search her apartment for a male criminal.
After this call, Argueta opened the front door. The agents wore vests with the word “police” printed on them and visibly displayed holstered firearms. The ICE agents entered Argueta’s apartment without voluntary informed consent and without a valid judicial warrant. Once inside, the agents claimed they were looking for a particular man. Argueta indicated that she did not know that man and no man had lived in the apartment for at least seven years. The ICE agents searched Argueta’s entire apartment, including closets and underneath beds.
Thereafter, one of the ICE agents asked Argueta about her immigration status. Argueta explained that she had been granted TPS and was awaiting a new TPS card to arrive in the mail. Argueta’s TPS status was easily verifiable in the publicly-accessible United States Citizenship and Immigration Service database.
Thereafter, an ICE agent asked Argueta for identification. She presented her Salvadoran passport, which the agents confiscated. Subsequently, the ICE agents arrested Argueta. While in custody, ICE agents taunted Argueta about prison conditions, including the dangers of sexual
4

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attack, refused to allow her to contact her attorney, handcuffed her, scorned and humiliated her, and did not feed her for more than 24 hours. She was finally released after 36 hours.
Walter Chavez, Ana Galindo, and W.C. Walter Chavez and Ana Galindo are lawful permanent residents who reside in Paterson and have lived in the United States for approximately 28 years. Their nine-year-old son, W.C., is a United States citizen. On April 2, 2008, at approximately 7:15 am, Chavez was returning to his home when six unmarked vehicles converged on his house. Two ICE agents approached Chavez’s vehicle. One agent grabbed Chavez by the shirt collar, pulling him out of the car. Without identifying themselves, and while pushing Chavez, the agents demanded to see Galindo. One of the ICE agents threatened Chavez stating, “If you don’t open the door, we’re going to make things worse.” As Chavez opened the door, at least seven ICE agents entered the house. Although they wore jackets with ICE clearly printed on them, none of the agents identified themselves. The agents did not possess a valid judicial warrant. As Chavez entered the premises, he called out to Galindo who was in the shower. Galindo put a shirt on but “was not properly dressed.” Thereafter, one ICE agent screamed at Galindo, “Where are the illegal people?” Another agent repeatedly hollered the same question at Chavez. Another agent warned, “It’s illegal to be hiding illegals. If you don’t tell me where they are, things will get worse. If you don’t tell me where they are, we’ll arrest you.” Simultaneously, a female agent questioned Galindo about her sisters. Based upon Galindo’s reply, the agent acknowledged that Galindo was not the person the agents were seeking to arrest. Having heard the commotion, W.C. ran to his mother, crying. As he did, four of the ICE agents opened their jackets and displayed their guns and placed their hands on their firearms.
5

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One armed agent pointed his gun at her and W.C. The child, W.C., was terrorized. In front of W.C., an agent said to Galindo, “If you’re hiding illegal people here, we’re going to take your son and your residency away.”
Upon request, Galindo produced identification, including her New Jersey driver’s license, as well as her and Chavez’s green cards and her son’s United States passport. Throughout the search, the agents rummaged through family photos and other personal items. Before leaving, one of the agents directly announced, “We’re going to come back. And next time it will be worse.” W.C. was severely traumatized by the raid.
Arturo Flores and Bybyana Arias Plaintiffs Arturo Flores and his stepdaughter Bybyana Arias are both United States citizens. On the morning of November 13, 2006 at 3:00 a.m., Flores, his wife, and his wife’s teenage daughter Arias were asleep in their home in Clifton. As in the other instances, Flores was awakened by loud banging on his front door and the sound of his doorbell ringing incessantly. As he approached the door, Flores observed four law enforcement officers through the window. As Flores cracked the front door slightly, the agents forced the door open, shoving Flores out of the way, and entered the home without his consent. The agents did not possess a valid judicial warrant. ICE agents searched every room of Flores’s home. A female ICE agent entered Bybyana’s bedroom ordering her out of bed and into a common area where she was detained in her nightclothes along with Flores’s wife.
6

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ICE agents intimidated them while there by displaying their holstered firearms and at

certain points placing their hands on their holstered guns, suggesting they were preparing to

brandish their weapons.

The agents interrogated Flores, and upon demand, he produced identification. After the

search of the home, the agents arrested Flores’s wife and brother. Arias is distraught over this

incident.

Juan Ontaneda

On the morning of December 7, 2007, plaintiff Juan Ontaneda was living in a multi-

family home in Newark with a family (father, mother, grandfather, and three children).4

Around 5:30 to 6:00 a.m., Ontaneda was startled by pounding on his front door.

Thinking the person knocking might be another tenant who was locked out, Ontaneda opened the

door. He was confronted by six armed ICE agents wearing jackets bearing the acronym “ICE.”

Without identifying themselves, one or more of the ICE agents showed Ontaneda a

picture of an individual named “Elias.” Ontaneda denied knowing Elias, but the agents

prevented him from closing the door.

At this time, the owner of the dwelling appeared and after speaking with the agents, the

landlord told Ontaneda to get the grandfather. When Ontaneda returned he discovered that the

ICE agents had entered the apartment behind him. The ICE agents entered without a judicial

warrant and without his consent. At that time, the ICE agents interrogated the grandfather and

Ontaneda about their immigration status.

Upon demand, Ontaneda produced identification. He overheard the agents contact other

ICE personnel by telephone to inquire whether there was an outstanding deportation order for

4

It is uncertain whether Ontaneda is related to the family.

7

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Ontaneda. There was no such order. In addition, one agent suggested that Ontaneda should not be arrested, but this was overruled, at which point Ontaneda’s hands, ankles and feet were cuffed, and Agents transported Ontaneda to a detention facility in Elizabeth, New Jersey.
Veronica Covias Veronica Covias is a lawful permanent resident of the United States who lived with her husband and son in a two-story home in Paterson. At approximately 4:00 a.m. on March 26, 2007, the family awoke to loud pounding on their front door and shouts of “Paterson Police.” Covias went to the door and opened it a crack, thinking that there was an emergency. At that moment, she observed several ICE agents, and she inquired what they wanted. Covias asked if they had a warrant. The agents did not answer, but insisted that they “just want[ed] to talk to her.” Before Covias could respond, one ICE agent inserted his foot in the doorway and pushed the door open, forcing his way into the home. Covias did not give her consent to this entry. The agents did not possess a judicial warrant. About five ICE agents entered into the home, displaying batons. While keeping Covias on the first floor, other agents proceeded upstairs. Immediately thereafter, Covias’s son, shackled in handcuffs and leg irons, was escorted down the stairs by the agents. Although she begged to know why the agents were arresting her son, the agents did not answer. She pleaded to hug her son, but the agents pushed her aside. After being held in solitary confinement for approximately three days in Georgia, Covias’s son was deported.
Anonymous Plaintiffs Among the Plaintiffs, there are five who seek to proceed anonymously. They are Carla Roe 1 of Latino origin residing in Hudson County, Carla Roe 2 of Latino origin and a resident of Morris County, Carlos Roe 2 of Latino origin residing in Morris County, Carla Roe 3 of
8

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Latino origin residing in Salem County, and Carlos Roe 4 of Russian origin and residing in Passaic County (hereinafter collectively referred to as the Roe Plaintiffs).
The allegations of each Roe Plaintiff are set forth below. Carla Roe 1
In August 2007, at about 6:30 a.m., Carla Roe 1 was at home with her husband and their two young children, both of whom are United States citizens. At that time, she was startled by loud knocking at their front door. Her husband cracked open the front door slightly when he was confronted by three ICE agents.
According to Carla Roe 1, the agents failed to identify themselves, but they stated that they were looking for a person who sold drugs and asked to enter the home. Suddenly, the agents burst through the door and entered the home without plaintiff’s husband’s consent. The officers did not possess a valid search or arrest warrant. As Carla Roe 1 came downstairs and upon seeing the agents, she declared that the agents did not have permission to enter her home. In reply, one of the agents falsely indicated that her husband consented. Carla Roe 1 requested that the agents speak quietly to avoid waking her two children; the agents replied that they “didn’t care about the kids” and that they would do as they pleased. Carla Roe 1 was asked to provide identification, but she could not produce any. Carla Roe 1 attempted to call an attorney, but the ICE agents physically prohibited her from making a phone call. Because Carla Roe 1 lacked identification, she was taken into custody. Meanwhile, the agents searched the entire ground floor of the home. Thereafter, Carla Roe 1 was transported to the Hudson County Correctional Center. While there, Carla Roe 1 asked to consult her attorney, but the request was denied. After being detained for approximately two and one-half months, Carla Roe 1 was deported to Mexico.
9

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Carla Roe 2 and Carlos Roe 2 Carla Roe 2 and her son, Carlos Roe 2, lived with several other individuals in a threestory home in Morris County. In June 2007, at approximately 6:45 a.m., Carla Roe 2 heard loud banging on the front door. As she opened the door, ICE agents, with weapons drawn, forced their way into the home pushing Carla Roe 2 outside. The agents entered the home without Carla Roe 2’s consent. They lacked a judicial warrant. As Carla Roe 2 re-entered her home, the agents grabbed her, pulled her up the stairs, and then pushed her down onto a couch. Some agents proceeded to the third floor while another agent guarded Carla Roe 2 on the second floor. On the third floor, the agents found Carlos Roe 2, a high school student, coming out of the bathroom in his underwear. Without any knowledge of his status, the agents grabbed him and handcuffed him. One agent pointed his handgun at Carlos Roe 2. During this search and seizure, the phone rang. One of the agents looked at the “caller ID” and asked Carla Roe 2 about the caller whose name appeared on the phone display; Carla Roe 2 did not respond. The agent then allegedly wrote down every name and number recorded in the “caller ID” function of Carla Roe 2’s home phone. At some point Carla Roe 2 attempted to call a family member. When the agents realized same, one agent grabbed the phone from her and forcefully pulled it out of the wall and hid it in the refrigerator. By this time, Carlos Roe 2 was outside in an unmarked vehicle being transported to a police station, where agents questioned him and asked him to identify certain individuals. At no point was he read his rights or advised that he could speak to an attorney. The agents repeatedly asked Carlos Roe 2 if he was a gang member or sold drugs, or both. He denied same. Thereafter Carlos Roe 2 was taken to ICE Headquarters in Newark for six hours and then brought before a
10

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judge, who set bond at $20,000.5 He was detained in a facility in Hudson County for two

months.

Carla Roe 3

Sometime in August 2006 at approximately 3:00 a.m., Carla Roe 3, her husband, and her

three children were awakened by loud knocking on their door. The individuals outside repeatedly

yelled, “Open the front door.” Carla Roe 3 responded, “No.”

Eventually, Carla Roe 3’s husband opened the door. Carla Roe 3 saw the ICE agents

and members of the Penns Grove Police Department, all of whom were wearing bullet-proof

vests and carrying guns. More specifically, Carla Roe 3 recognized the female Spanish-speaking

Penns Grove police officer. In addition, Carla Roe 3’s husband recognized a black male Penns

Grove police officer. ICE agents told Carla Roe 3’s husband that they were looking for his

brother-in-law. Without waiting for a response, the agents shoved him up the stairs and into the

kitchen counter. They also pushed Carla Roe 3 out of the way. All the agents and officers had

their weapons drawn as they entered the home. Neither Carla Roe 3 nor her husband gave

consent to the agents and officers to enter their home.

Once inside an agent handcuffed the husband and again inquired about Carla Roe 3’s

brother. The husband replied that he had been deported two to three years earlier.6 An ICE agent

called for back-up, and at least another twelve John Doe ICE agents came into the home while

others remained outside. The agents detained Carla Roe 3 on the couch. At the time, Carla Roe

3 and her husband denied having any weapons or drugs. The agents proceeded to search the

entire home without consent. Brandishing their weapons, the agents awoke and handcuffed

5

No reason for the bond was alleged.

6

According to Carla Roe 3, a minimal review of DHS records would have revealed

this deportation.

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several of Carla Roe 3’s relatives and brought them into the common area. Against her pleas, the agents awoke Carla Roe 3’s children and searched their rooms. When Carla Roe 3 tried to ask the agents questions, they refused to answer, and screamed “Shut up” at her and at other occupants of the house.
The ICE agents confiscated Carla Roe 3’s Mexican passport. One agent threatened Carla Roe 3 that if she did not cooperate, she would be deported to Mexico and that her children would be taken from her. Another agent stated that he was on a “personal mission” to ensure her husband was jailed for 22 years for entering the country illegally. The agents arrested her husband and two other occupants of the house, all of whom were subsequently deported.
Carlos Roe 4 At approximately 5:30 a.m. in September 2007, Carlos Roe 4, who is married to a United States citizen, heard knocking on the front door of his two-bedroom apartment in Passaic County. Carlos Roe 4’s friend, who was temporarily visiting for a week, opened the door and was confronted by two ICE agents. Suddenly, there were nine agents at the door. One agent forced the door open and barred anyone from exiting the apartment. One ICE agent stated that they were looking for an individual named Jose Morales, who had been fraudulently using Carlos Roe 4’s mailing address. The agent showed Carlos Roe 4 a hand-drawn picture of a man, sketched on plain paper, which looked to Carlos Roe 4 like a child’s drawing. At that time, Carlos Roe 4 advised the agents that he lived in his apartment for seven years and had never seen any mail for Jose Morales and did not know him. Without consent and without a judicial warrant, the agents entered and searched the home. They displayed their guns. Carlos Roe 4 was frightened because he was not free to leave.
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The agents confirmed that there was no outstanding deportation order on Carlos Roe 4.

However, the agents arrested the friend, who remains detained at the Elizabeth immigration

facility. Two other agents searched through the friend’s room and belongings, including inside

drawers and suitcases as well as the rest of Carlos Roe 4’s home. One female agent flipped

through his books, and another rummaged through his mail.

Operation Return to Sender (ORTS)

In 2002, INS instituted a National Fugitive Operations Program. About a year later, in

the aftermath of 9/11, INS was subsumed into the Department, and the Department continued the

Program.7 From 2002 onward, the number of fugitive aliens in the country rose rapidly. In 2006,

there were 623,000 fugitive aliens. In order to address this concern, the Department increased

the number of Fugitive Operation Teams (FOTs) nationwide to fifty and dramatically increased

the target numbers of arrests for each FOT. In May 2006, the Department launched ORTS,

which combined the resources of the prior program with those of other state and local law

enforcement agencies in order to effectuate an “organized and methodical approach to the

identification, location, and arrest of ICE fugitive aliens.”8 As noted, ORTS focuses on fugitive

aliens. Fugitive aliens are non-United States citizens not currently in the custody or control of

ICE who have failed to depart the United States pursuant to a final order of removal, deportation

or exclusion, or have failed to report to a DRO [Office of Detention and Removal Operations]

officer after receiving notice to do so.” (OIG Report at 2).

7

See Department of Homeland Security, Office of Inspector General, “An

Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations

Teams,” OIG-07-34 (Mar. 2007), attached to FAC as Exhibit C (hereinafter referred to as OIG

Report) at 1.

8

See Letter of Myers to Christina DeConcini of the Nat’l Immigration Forum,

dated July 6, 2007, attached to FAC as Exhibit D (hereinafter Myers Letter).

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Under ORTS, officials conduct their investigations by “focus[ing] their efforts on specific fugitive aliens at specific locations; that is, by prioritizing fugitive aliens by those who (1) are a threat to national security, (2) pose a threat to the community, (3) were convicted of violent crimes, (4) are convicted felons, and (5) are non-criminal fugitives”. (Myers Letter at 2). The basic unit of enforcement is a FOT. In order to accomplish their goal of identifying, arresting, and removing fugitive aliens, “FOTs use leads and other intelligence based information.” Id. at 1. Such information is “gathered through law enforcement channels,” and once it locates several fugitives in the same vicinity, the FOT “develop[s] an operational plan for the swift and safe arrest of the fugitive aliens in the most fiscally efficient way.” Id.
The arrest of fugitive aliens is tricky due to the nature of the warrant issued. The procedure to obtain a warrant for removal is straightforward. An order of removal is issued by an immigration judge after a hearing. Upon receiving such an order, DRO issues a Warrant of Deportation/Removal. Id. at 2. Since these warrants are administrative in nature, as opposed to judicial, officers must “obtain consent before they are permitted to enter private residences.” Id. The Department recognizes that “warrants of removal do not grant the same authority to enter dwellings as a judicially approved search or arrest warrant.” Id.
Ancillary to their authority to arrest based upon a warrant of removal is an ICE agent’s authority to question any person about their immigration status. 8 C.F.R. § 287.5(a)(1). However, an officer may only detain an individual for further questioning if the officer has “reasonable suspicion that the individual has committed a crime, is an alien who is unlawfully present, is an alien with status who is either inadmissible or removable from the United States, or is a non-immigrant who is required to provide truthful information to DHS upon demand.” (Myers Letter at 2) (citing 8 C.F.R. § 214.1(f)).
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In order to obtain knowing and voluntarily consent from a dwelling’s occupants, FOTs utilize interpreters during operations. According to their standard practices, the interpreter requests permission to enter a residence, and if so granted, agents enter and secure the premises in order to ensure officer safety. Id.
After the search and the arrest occurs, if any, and according to policy, the family members are provided a telephone number to call in order to locate the arrested. In addition, arrestees are afforded an opportunity to make a telephone call and to acquire legal services. Id.
II. The Roe Plaintiffs’ Request to Proceed Anonymously According to the Roe Plaintiffs, “they have acute fear of retaliation by the immigration authorities” because they are bringing this suit. As a result, they wish to proceed anonymously. According to the Complaint, ICE has been known to retaliate against immigrants who have spoken out against immigration laws and practices. In addition, the conduct of the ICE agents “disproportionately harms immigrants who have legitimate reason9 to fear immigration authorities.” This gives rise to a “strong public interest” favoring anonymous filing pursuant to the Federal Rules. As presented, the Roe Plaintiffs are seeking both non-disclosure of their identities in the public records, and that their identities not be disclosed to the Defendants whom they are suing. The Roe Plaintiffs seek to proceed anonymously because of fear of retaliation by immigration officials for filing this lawsuit. For the reasons set forth below, the Court finds that the Roe Plaintiffs have not satisfied the requirements for filing anonymously pursuant to Fed. R.

9

The “legitimate reasons” are not plead.

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Civ. P. 5.2(e). More specifically, paragraphs 22 and 23 of the FAC enumerate the Roe Plaintiffs’
rationale. These paragraphs state:
22. Plaintiffs Carlos and Carla Roes 1-4 seek to proceed pseudonymously because they have an acute fear of retaliation by the immigration authorities whom they sue here. ICE has been known to retaliate against immigrants who have spoken out against immigration laws and practices. See, e.g., Laura Wides-Munoz, Student activist says ICE targeted her family to silence her, Associated Press, Mar. 4, 2008.
23. Because the unconstitutional conduct described in this Complaint disproportionately harms immigrants who have legitimate reason to fear immigration authorities, there is a strong public interest in allowing plaintiffs to proceed pseudonymously in order to provide this Court with an opportunity to protect the constitutional rights of individuals in this most vulnerable group.
In paragraph 22, the Plaintiffs rely on a single newspaper article. The article is about the
family of a student activist who testified before Congress and organized on behalf of the Dream
Act, a pro-immigration reform proposal. As a result of the student’s lobbying activity, ICE
agents retaliated by raiding his parent’s home. The problem with the Roe Plaintiffs’ application
is the inherent unreliability of newspaper stories -- they are obviously hearsay. Barnes Found. v.
Township of Lower Merion, 242 F.3d 151 (3d Cir. 2000). In the case at hand, the Roe Plaintiffs
proffer the newspaper article for its truthfulness; as such, the contents are hearsay. Fed. R. Evid.
801(c); see also, Tyson v. Willauer, 290 F. Supp. 2d 278, 287 n.5 (D. Conn. 2003). Even if the
article were admissible, it provides unreliable proof that the same incident would happen here
where the facts are far different and in a different geographical area.
Generally, there is a strong presumption in favor of disclosure of the identities of the
parties to an action. Doe v. Hartford Life and Accident Ins. Co., 237 F.R.D. 545, 549 (D.N.J.
2006). But this presumption may be rebutted where exceptional circumstances justify a
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departure from the normal course. Id. “A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity.” M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998) (quoting Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)); see also Schuldiner v. K Mart Corp., 284 F. App’x. 918, 921 n.2 (3d Cir. 2008).
For more than ten years in this Circuit, the courts have followed the test enunciated in Doe v. Provident Life and Accident Ins. Co., 176 F.R.D. 464 (E.D. Pa. 1997). It instructs that the public’s right to access should prevail unless the party requesting anonymity establishes a legitimate privacy or security issue. Id. at 467.
A substantive analysis of the matter requires disclosure. There are factors which must be weighed in determining whether Roe Plaintiffs may proceed anonymously. See Lozano v. Hazelton, 496 F. Supp. 2d 477 (M.D. Pa. 2007); accord, Hartford, 237 F.R.D. at 549-50 (D.N.J. 2006).
In Doe v. Hartford, Judge Linares succinctly listed the factors: (1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant’s identity.
Similarly there are factors which would weigh against the use of a pseudonym. These include:
(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of the litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s interest which is normally obtained;
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and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated.
Id. at 549-50 (citation omitted). In considering all of the above factors, the request to proceed anonymously fails. The
bases upon which disclosure is feared are insufficient. First, a newspaper article is insufficient evidence. There must be particularized facts supported by the Complaint. An unrelated hearsay story is tenuous. Second, the Defendants have a substantial due process concern because it is difficult to mount a defense when you do not know the identity of plaintiff. See Doe v. Del Rio, 241 F.R.D. 154, 157 (S.D.N.Y. 2006) (quoting U.S. v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). As such, concealing the identity of Roe Plaintiffs will prevent maintenance of an adequate defense. Third, this non-disclosure of identity of Roe Plaintiffs undermines public confidence and trust. Most Americans would cringe that the federal officials could be sued and be responsible to pay damages to an unknown party. Fourth, here the Roe Plaintiffs are seeking to curtail or prohibit future ORTS arrests. This federal program is a major initiative to enforce immigration laws. As such, a fair trial based on all the facts, including the credibility of the parties and witnesses, must be assessed by the trier of fact. Non-disclosure prevents same. In short, the Roe Plaintiffs place a major federal government program squarely in interest, the public interest in a fair and open trial trumps a weakly presented threat of retaliation.
As noted above, public confidence in the integrity of any decision in this case mandates that the trial be fair to all parties. The Roe Plaintiffs’ application undermines this goal. In one case, Judge Munley permitted plaintiffs anonymity from the public, but the case at hand is clearly distinguishable. Lozano, 496 F. Supp. 2d at 506 (M.D. Pa. 2007). In Lozano, the primary issue was whether an ordinance was invalid on its face, while in the instant case, the
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Plaintiffs are seeking quite a different remedy including money damages and equitable relief. The factual issues surrounding each incident are distinguishable. The facial attack against an ordinance in Lozano is unlike the instant action because the proofs for a constitutional violation causing invalidity as opposed to allowing for an award of damages are far apart. In addition, in Lozano, a retaliation against plaintiffs was established at a hearing based on factual evidence. Nothing like that has been presented.
Here, any investigation and discovery requests by Defendants require the identity of the Plaintiffs as the starting point. The Roe Plaintiffs actually concede, in part, that it may be necessary for them to reveal their identities at some point. Their brief states:
More importantly, should defendants – at some future date – require the identity of one or more of the plaintiffs (either for discovery purposes or for litigating the merits) the court and the parties can seek to accommodate their interests at that time. This concession is illogical because Plaintiffs do not explain why non-disclosure is important at this juncture while that concern may be alleviated “at some future date.” The Court orders that the claims of the Roe Plaintiffs contained in paragraphs 133-186 of the FAC be dismissed without prejudice subject to the Roe Plaintiffs’ right to amend their complaint to include their identities.
III. Subject Matter Jurisdiction over Claims Brought by Alien Plaintiffs Who May Be Subject to Removal. Defendants argue in their second point that this Court lacks subject matter jurisdiction over the claims of Plaintiffs Ontaneda, Carla Roe 1, Carlos Roe 2, and Carla Roe 3, as these Plaintiffs were aliens subject to removal. Therefore, Defendants assert the claims made by these Plaintiffs should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). For the reasons that follow,
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this Court finds that it has subject matter jurisdiction over the claims of plaintiff Ontaneda (see supra at 7 - 8). As the claims of the anonymous Plaintiffs have been dismissed without prejudice, this Court declines to consider whether it has subject matter jurisdiction over their claims pursuant to 8 U.S.C. § 1252(b)(9) or (g). A. Standard of review on a motion to dismiss for lack of subject matter jurisdiction.
Before it can reach the merits of Ontaneda’s claims under, this Court must decide whether it has the ability to review Ontaneda’s claims at all. See In re Hechinger Inv. Co. of Del., Inc., 335 F.3d 243, 249 (3d Cir. 2003). Generally, "[a] court that is without proper jurisdiction cannot proceed at all, and must merely note the jurisdictional defect and dismiss the suit." Larsen v. Senate of the Commw., 152 F.3d 240, 245 (3d Cir. 1998). Accordingly, this Court must review a damages claim based upon Ontaneda’s status as a now-departed illegal alien.
Pursuant to the Federal Rule of Civil Procedure 12(b)(1), a claim can be dismissed for “lack of jurisdiction over the subject matter.” This motion to dismiss may be asserted at any time in a case. In re Kaiser Group Int’l, Inc., 399 F.3d 558, 565 (3d Cir. 2005). In a motion to dismiss based on subject matter jurisdiction, “the standard . . . is much more demanding [than the standard under 12(b)(6)]. ‘When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.’” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). If the defendant’s attack is facial, “the Court assumes that the allegations in the complaint are true, and may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction.” N.J. Prot. & Advocacy, Inc. v. N.J. Dep’t of Educ., 563 F. Supp. 2d 474, 479-80
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(D.N.J. 2008) (citing Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983) and Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999)). B. Dismissal of Ontaneda’s claim pursuant to Fed. R. Civ. P.12(b)(1) is inappropriate at
this time. Defendants assert a challenge to the District Court’s jurisdiction over Ontaneda’s Bivens claims because they claim that 8 U.S.C. §1252, entitled “Judicial Review of Orders of Removal,” deprives the District Court of jurisdiction over any claims “arising from any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9). Defendants also assert that this Court is deprived of jurisdiction over Ontaneda’s claims because “the Act precludes challenges to the Government’s decisions and actions ‘to commence removal proceedings, adjudicate cases, or execute removal orders.’” (Def. Br. at 14, quoting 8 U.S.C. § 1252(g)). As a preliminary matter, the Supreme Court has held that statutory jurisdiction stripping provisions should be interpreted based upon “the strong presumption in favor of judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289, 298 (2001). “Where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603 (1988). Before a statute will be construed to restrict access to a civil rights claim in a district court, there must be clear and convincing evidence of congressional intent to deprive the district courts of jurisdiction. Johnson v. Robison, 415 U.S. 361, 373-74 (1974). This requires a “heightened showing in part to avoid the 'serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Webster, 486 U.S. at 603. In light of this standard, each of the Defendants’ arguments will be examined separately.
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Defendants seek dismissal for lack of subject matter jurisdiction because they claim that
8 U.S.C. § 1252(b)(9) precludes review of Ontaneda’s claims by any district court10. Defendants
claim that Ontaneda’s only forum for redress is the Immigration Court, and that subsequent
review of his case takes place in the Court of Appeals only after a final order of removal has
been issued. The plain language of that section states:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28, United States Code or any other habeas corpus provision, by section [28 U.S.C. §1361 or 1651], or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
In 1996, Congress amended the Immigration and Nationality Act (INA) by way of the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism
and Effective Death Penalty Act (AEDPA) to preclude judicial review of any portion of a
deportation proceeding other than final orders for removal, thereby vesting jurisdiction over
orders for removal in the Circuit Courts of Appeal. Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 476 (2001) (“AADC”); see also Valdivia v. INS, 80 F. Supp. 2d 326, 327
(D.N.J. 2000)11.
10 One can understand the government’s argument that a civil rights complaint may act as a foil to deportation giving an immigrant a very valuable civil rights suit. If this is so, the court must be mindful that immigrants may institute many such cases in order to avert deportation. Although it is not the case here, such issues may be resolved in accordance with the timing of when a complaint is filed. cf. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
11 The specific provisions at issue in this case were added to § 1252 by the IIRIRA. 22

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By its clear language, §1252(b)(9) applies to all claims, whether statutory or constitutional, “arising from any action taken or proceeding brought to remove an alien from the United States.” Immigration Courts are administrative courts governed under the Administrative Procedure Act (APA). As such, these Article I courts adjudicate thousands of petitions each year, and their expertise in adjudicating such petitions is not at issue. What is at issue, rather, is whether Congress, in limiting jurisdiction over “Orders of Removal,” actually intended to deprive the district courts of the ability to review claims for damages resulting from other alleged civil rights violations. Certainly, Immigration Courts, for all their expertise, are neither jurisdictionally nor procedurally equipped to handle such claims.
There is little, if any, precedent in this Circuit that is directly on point. However, several other circuits have examined the issue. In Aguilar v. U.S. Immigration and Customs Enforcement, 510 F.3d 1, 13-14 (1st Cir. 2007), the First Circuit held that, because the petitioners’ claims arose directly from removal proceedings, those claims were barred from review before a district court by §1252(b)(9). The First Circuit also stated that the claims should instead be channeled into the administrative review process delineated by the INA, causing petitioners’ claims to be reviewed first by the immigration judge, then by the Board of Immigration Appeals, and finally by the Circuit Court of Appeals. Id. In dicta, that court also stated that, “[w]ith respect to [§ 1252 (b)(9)], [the] words [“arising from”] cannot be read to swallow all claims that might somehow touch upon, or be traced to, the government's efforts to remove an alien.” Id. at 10. That court further stated that “the legislative history [of §1252(b)(9)] indicates that Congress intended to create an exception for claims ‘independent’ of removal.” Id. at 11 (citing H.R. Rep. No. 109-72, at 175, as reprinted in 2005 U.S.C.C.A.N. at 300). The First Circuit explained that habeas review of challenges to detention, claims for bail,
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and claims for money damages under Bivens were all likely to be independent, excepted claims separate and apart from challenges to removal orders covered by §1252(b)(9). Id.
Similarly, in Arar v. Ashcroft, 532 F.3d 157, 192-93 (2d Cir. 2008), the Second Circuit concluded that plaintiff’s complaint needed to be dismissed for failure to state a claim upon which relief might be granted and because the facts alleged did not rise to the level necessary to create a free standing damages claim under Bivens. It nonetheless stated that “the test for determining whether [a statute vesting exclusive jurisdiction in the courts of appeals] precludes a district court from hearing a particular claims is . . . whether the claim could and should have been presented to and decided by a court of appeals.’” Id. at 170 (quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 339 (1958) (alterations in original). That court also opined that congressional intent to deprive the district courts of jurisdiction over review of even constitutional claims must be clear. Id. at 169 (citing Webster v. Doe, 486 U.S. 592, 603 (1988)).
Here, it is not abundantly clear that Ontaneda’s claims could have been brought up through the administrative process delineated by 8 U.S.C. § 1252. The specific conduct of which Ontaneda complains does not involve deportation proceedings in Immigration Court. Rather, it is the entry into and search of his home by ICE agents without his consent, without a valid search or arrest warrant for Ontaneda himself or any of the occupants, and without probable cause or exigent circumstances necessitating their entry, all of which he claims are violations of his Fourth Amendment right to be free from unreasonable searches and seizures, that form the basis of Ontaneda’s Bivens claims. Further, Ontaneda complains of his arrest, not based upon its validity before the Immigration Court in deportation proceedings, but because he claims it was effectuated based upon his race and ethnicity, in violation of his Fifth Amendment
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right to equal protection under the law. Ontaneda alleges in the FAC that he presented a valid North Carolina driver’s license to the ICE agents who entered his home; that he was never asked about his immigration status prior to his arrest; and that he was arrested even after ICE agents learned that no outstanding deportation orders existed for him. Ontaneda does not bring a claim seeking to invalidate his arrest and challenge a final order for removal. Ontaneda does not challenge an order of removal, nor does it appear from the record that one was ever entered against him.12 In fact, according to Plaintiffs’ opposition brief, Ontaneda was granted a Voluntary Departure subsequent to the filing of the FAC.13 (Pl. Br. at 5). Instead, Ontaneda brings this claim for money damages under Bivens against the Defendants whom he claims violated his constitutional rights. His constitutional claims could not be brought before an immigration court because he does not seek to challenge his removability. (See Pl. Br. at 14). Therefore, because Ontaneda’s claims are outside the ambit of the administrative process, they are independent and excepted claims in accordance with the plain language of §1252(b)(9).
Defendants have indicated that the District of Minnesota recently decided a case, Arias v. U.S. Immigration and Customs Enforcement, Div. of the Dept. of Homeland Security, Civ. No. 07-1959, 2008 WL 1827604 (D. Minn. Apr. 23, 2008), in which that court dismissed similar claims of removable aliens to those made here by Ontaneda §1252 (b)(9) for lack of subject matter jurisdiction. Arias is factually distinguishable from the matter sub judice. In Arias, the
12 According to Plaintiffs’ brief, Ontaneda was allowed to voluntarily depart the United States. (Pl. Br. at 5). To the extent that the Third Circuit has declared that any order “determin[ing] that an alien is removable” when coupled with “a contingent order of removal” is deemed a final order for purposes of review, see Obale v. Att’y Gen. of the U.S., 453 F.3d 151, 160 (3d Cir. 2006), it is also this Court’s understanding that Ontaneda is not challenging that he was a removable alien. (Pl. Br. at 14).
13 There is nothing in the record that Ontaneda voluntarily waived his right to bring a civil rights suit when he voluntarily agreed to depart.
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district court held that it did not have subject matter jurisdiction over the removable plaintiffs’ Bivens claims because they were in the midst of removal proceedings. Thus, stated the court, the constitutional violations claimed by the removable plaintiffs were “common in removal proceedings and could directly impact Plaintiffs’ immigration status.” Here, however, Ontaneda, who was allowed to voluntarily depart the United States, is not in the midst of a removal proceeding, does not challenge a removal order, and therefore cannot bring his claims for constitutional rights violations as a part of the removal proceedings. While the intent of Congress was to channel claims arising from actions to remove undocumented aliens from the United States through the administrative process, it is clear from the very title of the statute, “Judicial review of orders of removal,” that the Congressional mandate to channel litigation does not and cannot extend to the factual circumstances of Ontaneda’s particular case.
If this Court is deprived of jurisdiction over Ontaneda’s damages claims, there will be no forum where he can seek redress of his grievances against the government Defendants. Review of a final order of removal cannot and will not grant him redress– no final order of removal is in place as to this plaintiff. Given the unique factual circumstances of Ontaneda’s case– that he merely seeks damages and does not request an invalidation of his departure from the United States – and given the inability of this plaintiff to seek redress in any other forum, it would be an unjust result to deprive this court of subject matter jurisdiction over Ontaneda’s claims. Further, absent clear and convincing evidence of the intent of Congress to deprive this Court of subject matter jurisdiction to hear damages claims in this factual context, this Court finds that it is vested with subject matter jurisdiction sufficient to review Ontaneda’s Bivens claims. As a result, based
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upon the unique factual situation surrounding Ontaneda’s circumstances, this Court declines to grant Defendants’ motion under Rule 12(b)(1).14
Defendants’ second argument is that §1252(g) deprives this Court of subject matter
jurisdiction over Ontaneda’s claims because it implicates ICE’s decision to commence
proceedings against Ontaneda. For the reasons that follow, this argument fails.
Subsection (g) states:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including [28 U.S.C.S. § 2241], or any other habeas corpus provision, and [28 U.S.C.S. §§ 1361 and 1651], no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.
8 USC. § 1252(g) (emphasis added). In AADC, 525 U.S. at 482, the Supreme Court discussed
the applicability of §1252(g) to claims by aliens based upon their being removed from the United
States. As was clearly stated by the Supreme Court, §1252(g) applies only to the three
circumstances listed therein: commencement of proceedings, adjudication of cases before an
immigration court, and execution of removal orders. Id. The Court discussed the long history
leading up to the amendments to the INA in the IIRIRA, stating that the INA was amended to
protect the Attorney General from lawsuits for declining to exercise its discretion in dealing with
the removal of undocumented aliens.
14 In practice, giving administrative bodies the right to assess civil rights suits does not make the most sense. For example, Congress did not give administrative bodies the right to issue a warrant which includes entering a residence. Despite that fact, the government argues that agents on the street may enter a residence if there is consent and a review of that consent goes to the administrative agency. It is more plausible that Congress believed the validity of consent to enter a residence should remain with the judiciary.
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Because the congressional mandate was to channel litigation into a single administrative process with review before the Circuit Courts of Appeals, the Court opined that “[s]ection 1252(g) seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” Id. at 485.
The Supreme Court further examined §1252(g) in St. Cyr, 533 U.S. at 31, superseded by statute, 119 Stat. 302 § 106 (May 11, 2005).15 In that case, the Court stated that “[i]n . . . [AADC], we explained that that provision applied only to three types of discretionary decisions by the Attorney General -- specifically, to commence proceedings, to adjudicate cases, or to execute removal orders -- none of which [were] at issue [in St. Cyr’s case].” Id.
The Third Circuit also recently examined §1252(g) with reference to the Circuit Court's jurisdiction to review a final order of removal. In Garcia v. Att'y Gen. of the U.S., 545 F.3d 252, 256 (3d Cir. 2008), the Third Circuit held that subsection (g) was only applicable to review of three specific discretionary decisions made by the attorney general: the decision “to commence proceedings, adjudicate cases, or execute removal orders.” (Internal quotation marks omitted). The Third Circuit specifically explained that “[d]espite its apparent broad reach, therefore, §1252(g) “is to be read narrowly and precisely” to prevent review only of the three narrow discretionary decisions or actions referred to in the statute." Id. (quoting Sabhari v. Reno, 197
15 The REAL ID Act of 2005 specifically limited the district court's ability to review petitions for habeas corpus under the INA. The Act amended the language of subsection (g) to add a specific reference to habeas corpus claims. However, as this is not a case that implicates a review of a petition for habeas corpus, the amendment does not bear upon the outcome of the case sub judice.
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F.3d 938, 942 (8th Cir 1999) and citing Fornalik v. Perryman, 223 F.3d 523, 531 (7th Cir. 2000)).
Here, as is clear from the complaint, no order of removal had been entered against Ontaneda at the time of his arrest. (See FAC ¶ 111-124). Further, the entry into Ontaneda's home and his subsequent arrest did not occur as part of a decision to adjudicate his case, as it does not appear from the record that any proceedings had yet been instituted against him. Rather, Defendants argue, Ontaneda's claims should be barred because the activities of which he complains fall within the “decision to commence proceedings” against him.
Based upon the record, it is fairly clear that Ontaneda was not arrested to commence proceedings against him, and the Government does not make this claim. Rather, the Defendants state in their reply brief that “ICE agents arrived at plaintiffs’ residences to commence removal proceedings against illegal aliens.” (Def. Reply Br. at 11). While it is true that the statute plainly bars challenges to the decision or action of the Attorney General to the commencement of proceedings against an alien, Defendants’ interpretation of the language goes too far. It seems, rather, that the decision to commence proceedings against Ontaneda arose from his arrest, rather than that his arrest arose from a decision to commence proceedings. The difference, while seemingly semantic, is important to the analysis of Ontaneda’s claims. See, e.g., Khorrami v. Rolince, 493 F. Supp. 2d 1061, 1068 (N.D. Ill. 2007) (finding that the plaintiff’s claims in that case bore “more than a cursory relationship to the decision to commence proceedings,” that the claims, in fact, were “a direct outgrowth of the decision to commence proceedings,” and therefore were barred under §1252(g)).
Based upon the attendant circumstances, Ontaneda was arrested for the purposes of investigation into his status. He presented a valid North Carolina driver’s license to authorities
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when asked. He was not asked about his immigration status prior to his arrest, and it is not clear from the record that the decision to arrest Ontaneda, or any of the other named Plaintiffs for that matter, occurred as a result of a decision to commence proceedings against any of them. Because the search, seizure, and arrest were all investigative in nature, they fall outside the channeling provisions of §1252(g). AADC, 525 U.S. at 482. As a result, based upon the unique factual circumstances attendant to Ontaneda’s claims, this Court finds that it is vested with subject matter jurisdiction sufficient to review this matter.
IV. Plaintiffs Believed To Be Unlawful Aliens’ Ability To Pursue Bivens Claims.
Defendants argue that certain claims brought by the Plaintiffs believed to be unlawful aliens seek an unauthorized extension of Bivens, 403 U.S. at 388. Bivens held that a plaintiff could sue a federal agent in federal court for damages for violations of the Fourth Amendment right to be free from unreasonable searches and seizures. Id. at 397. Subsequent Supreme Court decisions established a so-called Bivens action could be brought against federal officials for violations of the due process protections of the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 248-49 (1979), and for violations of the Eighth Amendment’s prohibition against cruel and unusual punishment, Carlson v. Green, 446 U.S. 14, 19 (1980).
Again, Defendants argue that this Court cannot imply Bivens claims on behalf of Plaintiffs believed to be unlawful aliens. These Plaintiffs are Carla Roe 1, Carlos Roe 2, Carlos Roe 3, Ontaneda, and Argueta. This Court has already dismissed these three Roe
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Plaintiffs and declines to consider whether their claims amount to an unauthorized extension of Bivens. Ontaneda’s and Argueta’s claims remain.
At the time of arrest, Ontaneda was believed to be unlawfully present in this country and was subsequently allowed to voluntarily depart the United States, while Argueta has had valid Temporary Protection Status since 2001, allowing her to remain lawfully in the United States. She alleges that while certain Defendants were searching for a male criminal, they entered her residence without informed consent and during their search of the premises arrested her on the erroneous belief that she was unlawfully present in the U.S. despite clear and easily-verifiable evidence to the contrary. She was taken into custody and released 36 hours after she was arrested. Ontaneda brings Bivens claims for violations of the Fourth Amendment right to be free from unreasonable searches and seizures and the Fifth Amendment’s equal protection guarantee. Plaintiffs argue that these are garden-variety Bivens claims, that implies a cause of action is a straightforward application of Bivens and its progeny. In order to determine whether Bivens is applicable, Plaintiffs must overcome two hurdles. They are whether (1) there is no alternative, existing process for protecting Plaintiffs’ constitutional interests, and (2) if there are no special factors counseling hesitation against a judicially-created remedy. Wilkie v. Robbins, 127 S. Ct. 2588, 2597 (2007). Further, since the early eighties, the Supreme Court has “responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Corr. Svcs. Corp. v. Malesko, 534 U.S. 61, 69-70 (2001) (citation omitted).
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A. Whether the INA’s comprehensive statutory scheme protects the Plaintiffs’ constitutional interests and precludes a Bivens remedy. The government argues that a Bivens remedy [w]hen the design of a Government
program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.” Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).
In addition, the government contends that the INA is a “the comprehensive federal statutory scheme for regulation of immigration and naturalization,” DeCanas v. Bica, 424 U.S. 351, 353 (1976). And since Congress has made a comprehensive foray into the area at issue, a court must “stay its Bivens hand,” even if that leaves certain plaintiffs without remedy for certain constitutional violations. Wilkie, 127 S. Ct. at 2600; see also Bush v. Lucas, 462 U.S. 367 (1983).
However, other courts disagree with the government’s position. Addressing alleged violations of aliens’ Fourth and Fifth Amendment rights, one district court held that the INA “is by no means a comprehensive remedial scheme for constitutional violations that occur incident to the administration of that regulatory scheme.” (emphasis in original). Turkmen v. Ashcroft, No. 02-cv-2307, 2006 WL 1662663 *29 (E.D.N.Y. June 14, 2006). Similarly, Cesar v. Achim, 542 F. Supp. 2d 897, 900 (E.D. Wis. 2008) observed that provisions of the INA addressing apprehension, detention, and removal are “merely regulatory, defining the Attorney General's powers and duties regarding the detention and removal of aliens, and do not mention or provide any means of redress for constitutional violations.” Further, the First Circuit explained that a claim for money damages under Bivens was likely to be an
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independent claim, separate and apart from challenges to removal orders covered by § 1252(b)(9). Aguilar, 510 F.3d at 11.
Instead, Defendants argue that this Court should follow the example of Lucas, wherein the Supreme Court declined to imply a Bivens remedy due to administrative remedies that provided “comprehensive procedural and substantive provisions giving meaningful remedies against the United States.” 462 U.S. at 368. The Court observed in a footnote that, by statute, federal employees were left without remedies against their supervisors for certain discrete personnel actions, such as improper short suspensions or wiretapping, yet the Court would not create remedies. Id. at 385 n.28. The government additionally argues that when creating a complex statutory scheme, Congress chooses to provide certain remedies, and chooses not to provide others, and it is not for courts to override congressional intent. See Shreiber v. Mastrogiovanni, 214 F.3d 148, 152 (3d Cir. 2000).
The focus of this Court is on “whether it is appropriate to create a damages action to remedy the wrong in light of what Congress has done.” Id. at 154. Previously, the Court concluded Ontaneda’s Bivens claims could not have been brought through the administrative process delineated by statute (8 U.S.C. § 1252). This Court held that it had subject matter jurisdiction over Ontaneda’s Bivens claims because there would be no forum where he could seek redress for his grievances against Defendants. That rationale applies equally here. Ontaneda is not before an immigration court; he does not seek to challenge his removability. It would be odd and unjust for Congress to bar Ontaneda from bringing constitutional claims simply because he does not challenge his removal.
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As for Argueta’s Bivens claims, it is not clear how she could even be involved in the administrative process outlined in the INA. Her only chance for relief for the claims at issue is before this Court. Argueta is simply a lawful resident who was detained for 36 hours and then released. This occurred because federal officials happened to be under the mistaken belief that she was in this country illegally. Her claim for damages due to federal officials’ violations of her Fourth Amendment right to be free from unreasonable searches and seizures is an ordinary claim that is properly before this Court. In this Court’s view, it is clear that Congress did not intend to strip this Court from allowing a Bivens claim where federal officials may have violated lawful residents’ fundamental constitutional rights. B. Whether the Executive’s and Congress’s plenary power over immigration is a special
factor that precludes a Bivens remedy. This Court must next decide whether Congress’ and the Executive’s plenary power over immigration is a special factor that counsels against the creation of a Bivens remedy. The government argues that the Executive branch has such plenary power over immigration as to largely immunize its decisions in this area from judicial review. See Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952). This argument is unavailing. Executive power over immigration largely springs from congressional delegation of this power. See Galvan v. Press, 347 U.S. 522, 531; accord Zadvydas v. Davis, 533 U.S. 678, 695 (2001). Although the INA grants the Executive certain powers over immigration, Congress has not issued a statutory directive to bar § 1983 actions. Given the delineation of executive power in the INA, the government cannot cogently make the argument that the Executive’s power over immigration matters outwardly counsels against this Court’s hearing Plaintiffs’ Bivens claims.
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Next, Defendants posit that to interfere in this matter would unnecessarily enmesh this Court in difficult foreign affairs and public policy issues, as well as matters of national security. This argument misinterprets what is before this Court. This case is not about “sensitive political functions that implicate questions of foreign relations.” I.N.S. v. Abudu, 485 U.S. 94, 110 (1988). Rather, it is about individuals alleging that their basic constitutional rights were violated by Government actors. Although the government’s argument has merit, it is an essential principle of liberty that “where federally protected rights may have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” Bell v. Hood, 327 U.S. 678, 684 (1946). The Court finds no reason to adjust that policy.
V. Personal Jurisdiction Over Defendants Myers and Torres. Defendants next assert that this Court lacks personal jurisdiction over Defendants Myers and Torres because neither of those Defendants is a resident of New Jersey, and neither defendant has sufficient minimum contacts with New Jersey for this court to sustain jurisdiction over these Defendants. For the reasons that follow, this argument likewise fails. Pursuant to Fed. R. Civ. P. 12(b)(2), a complaint may be dismissed for lack of personal jurisdiction. “If an issue is raised as to whether a court lacks personal jurisdiction over a defendant, the plaintiff bears the burden of showing that personal jurisdiction exists.” Marten v. Godwin, 499 F.3d 290, 295-96 (3d Cir. 2007). “To meet this burden, the plaintiff must establish either that the particular cause of action sued upon arose from the defendant's activities within the forum state (‘specific jurisdiction’) or that the defendant has ‘continuous and systematic’ contacts with the forum state (‘general jurisdiction’).” Provident Nat'l Bank
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v. CA Fed. Sav. & Loan Assn., 819 F.2d 434, 437 (3d Cir. 1987) (citations omitted). Under Fed. R. Civ. P. 4(k), “‘a federal district court may assert personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state.’” Id. at 296 (quoting Provident Nat'l Bank, 819 F.2d at 437; Fed. R. Civ. P. 4(k)(1)(A)). Pursuant to the New Jersey long-arm rule, N.J. Court R. 4:4-4(c), personal jurisdiction in New Jersey “extends to the limits of the Fourteenth Amendment Due Process protection.” Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 145 (3d Cir. 1992).
Therefore, this Court is “constrained, under New Jersey's long-arm rule, only by the ‘traditional notions of fair play and substantial justice,’ inhering in the Due Process Clause of the Constitution.” Id. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Those notions require that a defendant have certain minimum contacts with the forum state based upon the defendant's own purposeful availment “of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Unilateral activity on the part of the plaintiff will not cause the defendant to be subject to personal jurisdiction in that forum. Id.
However, physical entry into the forum state is not necessary to maintain personal jurisdiction over a defendant. Id. at 476. While a presence in the forum will only serve to enhance a defendant’s affiliation therewith and serve to reinforce foreseeability of suit therein, “it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted.” Id.
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All that is necessary for sufficient minimum contacts to be established in the forum state is for the “actor’s efforts [to be] ‘purposefully directed’ toward residents of another State.” Id.
Here, Myers and Torres, who are not domiciled in New Jersey, claim that they do not have sufficient minimum contacts with New Jersey to justify being haled into court here. The three-pronged test for specific personal jurisdiction requires that: (1) the nonresident defendant must purposefully direct his activities at the forum; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice. O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). It appears to this Court that Plaintiffs have alleged sufficient facts in the FAC to subject both Myers and Torres to the personal jurisdiction of this Court, at this stage of the litigation, based upon the specific acts and omissions alleged with regard to ORTS.
Myers and Torres certainly had sufficient minimum contacts with New Jersey to justify their being sued in New Jersey based upon their specific actions with reference to ORTS. As alleged in the FAC, Myers and Torres “facilitated the creation of a culture of lawlessness and lack of accountability within an agency they supervise.” (FAC ¶ 191). Further, it is alleged that Myers and Torres had personal knowledge of the allegations of lawlessness based upon the numerous lawsuits filed against them in 2006 and 2007 (FAC ¶ 192), and that they were both “made aware of the unconstitutional home-raid practices through lawsuits, congressional inquiries, repeated national media reports, memoranda and other sources.” (FAC ¶ 195). In addition, it is alleged that Torres had direct responsibility for the execution of fugitive operations within ORTS. (FAC ¶ 194). These facts
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demonstrate that Myers and Torres purposefully directed their supervisory activities at New Jersey. These allegations therefore meet the first prong of O’Connor.
Likewise, the allegations meet prong two of O’Connor– that the alleged wrong arises out of the activities directed at the forum. Plaintiffs have alleged a supervisory claim against Myers and Torres based upon their failure to properly supervise, investigate claims of unlawful home raids, and discipline their New Jersey staff. The alleged wrong arises directly out of Defendants’ forum-based activities.
Finally, the allegations meet the third prong of O’Connor– the fair play and substantial justice test. It is clear from the facts presented in the complaint that Plaintiffs have, at the very least, stated a basis upon which this Court may exercise personal jurisdiction over Myers and Torres in their capacities as supervisors. Their activities as supervisors in ORTS were purposefully directed at New Jersey, and it would not be unfair to them for this Court to exercise jurisdiction over them based upon these activities, given the small distance between Washington, D.C. and New Jersey, and the great stake the District of New Jersey has in preventing violations of its residents’ constitutional rights. Subjecting Myers and Torres to personal jurisdiction in this forum, based upon this specific set of facts, does not offend traditional notions of fair play and substantial justice.
Therefore, Myers and Torres are subject to the jurisdiction of this Court. Defendants’ motion to dismiss for lack of personal jurisdiction is denied.
VI. Qualified Immunity of the Supervisory Defendants. Lastly, Defendants argue that the four Supervisory Defendants are entitled to qualified immunity and should therefore be dismissed from this lawsuit.
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The doctrine of qualified immunity is intended to shield government officials in their individual capacities from the entirety of the litigation process where “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). Courts emphasize that “qualified immunity is an immunity from suit as well as from liability.” Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, 128 S. Ct. 2931 (June 16, 2008), and that an important purpose of qualified immunity is to protect government officials from the “burdens of broad-reaching discovery.” Crawford-El v. Britton, 523 U.S. 574, 587 (1998).
In order to overcome qualified immunity, a plaintiff must allege facts to show that an individual defendant had personal involvement in the alleged wrongdoing. Liability cannot be based on the theory of respondeat superior. “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted). Plaintiffs argue mainly that the Supervisory Defendants had actual knowledge of and acquiesced in the alleged constitutional violations.
The Third Circuit has formulated several ways in which a plaintiff can show a defendant’s knowledge of and acquiescence in conduct that violates the Constitution. Knowledge and acquiescence attach where a supervisor tolerates past or ongoing misconduct, Stoneking v. Bradford Area School Dist., 882 F.2d 720, 724-25 (3d Cir. 1989), or where the supervisor is “aware of the problems . . . but d[oes] nothing to stop them.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1479 (3d Cir. 1990). Knowledge and acquiescence can also be understood as “adopting and maintaining a practice, custom or policy” that contributed to the alleged violations. Stoneking, 882 F.2d at 724-25. Examples
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of this behavior are showing reckless indifference to the alleged violations or concealing and discouraging complaints about such conduct. Id. The language in Stoneking is grounded in the precedent of Monell v. Dept. of Social Svc’s of the City of New York, 436 U.S. 658 (1978), where the Court rejected respondeat superior liability for local governments and limited such liability to instances where implementation of a local government’s official policies or established customs inflicts the constitutional injury. Id. at 694. Another similar formulation of personal involvement in an official capacity is when that official is a “moving force” behind the alleged deprivation. Maples v. City of Atl.antic City, Civ. No. 06-2200, 2008 WL 2446825, at *4 (D.N.J. June 16, 2008) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
Defendants argue for a more strict pleading standard. Bell Atl. v. Twombly, 550 U.S. 544 (2007). The Twombly Court explained that “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555; see also Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).
Post-Twombly, the applicable pleading standard in a civil rights case is, generally, that the plaintiff must provide “some factual allegation in the complaint . . . providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Twombly, 550 U.S. at 535 n. 3 (citing Wright & Miller § 1202, at 94, 95). Further, this matter comes to the Court on a motion to dismiss. Therefore, there is no discovery as to the supervisors’ involvement. Without some discovery, it is difficult for a court to dismiss the claims against the supervisors. See Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000). “Rule 12(b)(6) is a mismatch for immunity and almost always a bad ground of dismissal” and “summary judgment is the right way to handle claims of immunity.” Id. (Easterbrook, J., concurring). With these observations in mind, the Court turns to Plaintiffs’
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allegations to determine whether they can, in opposing a motion to dismiss, and overcome
the four Supervisory Defendants’ claims of qualified immunity.
In their brief in opposition to this motion, Plaintiffs summarize their allegations of the
Supervisory Defendants’ personal involvement. Plaintiffs allege that the Washington, D.C.-
based Supervisory Defendants, Myers and Torres,:
(i) created and directed Operation Return to Sender; (ii) were repeatedly informed of the specific and predictable abuses by ICE agents in New Jersey and elsewhere–not just via media reports, but also in congressional testimony, a letter from the National Immigration Forum, a phone call from the mayor of New Haven and multiple lawsuits around the country naming them as defendants; (iii) despite being put on notice of repeated unlawful conduct by agents acting pursuant to their policies, took no actions to reprimand, train or otherwise prevent continued violations; (iv) regularly commented on the Operation Return to Sender’s procedures in response to public criticism, and (v) routinely boasted of the operation’s success in New Jersey and nationwide, notwithstanding those criticisms.
Plaintiffs allege that the New Jersey-based Supervisory Defendants, Weber and Rodriguez,:
knew that ICE agents were entering and searching homes in New Jersey without search warrants and without obtaining voluntary, informed consent . . . . Despite this knowledge, neither Weber nor Rodriguez took any steps to correct such unconstitutional conduct and instead publicized the ‘success’ of these raids while allowing the conduct to persist. Accordingly, defendants Weber and Rodriguez at best acquiesced in, and at worst, encouraged such [wrongful] behavior.
Plaintiffs must demonstrate that the four Supervisory Defendants had knowledge and
acquiesced to the searches of the homes. The dilemma here is that the allegations as outlined
in the complaint are hearsay based upon newspaper articles (see supra at 16). A court will not
rely upon inadmissable hearsay. Fed. R. Evid. 802; see also United States v. Lawrence, 349
F. 3d 109 (3d Cir.), cert. denied, 542 U.S. 944 (2004). The Myers Letter addresses the
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concern about illegal searches, and it states that all information is "taken . . . seriously and will fully investigate all allegations," which comport with Defendants’ view. As previously noted, a complaint will defeat a motion to dismiss so long as there is fair notice and grounds on which the claims rest. Twombly, 550 U.S. at 556. In this case, the complaint sufficiently asserts the claim.
At this stage in the litigation, prior to discovery, this Court is reluctant to deny Defendants’ claim about qualified immunity where controversy exists. At this point, there is an insufficient record to shut the door on a qualified immunity defense. More evidence is needed before this Court can more capably decide whether defendants were personally involved. See Jacobs, 215 F.3d at 775.
Qualified immunity is a shield from both liability and burdens of the litigation process. Crawford-El, 523 U.S. at 587. Rather than overreach on granting motions to dismiss, courts should rely on control of discovery and summary judgment to “weed out unmeritorious claims.” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-69 (1993). The Iqbal case suggested that reciprocal discovery be limited and tightly controlled so that a defendant can probe for amplification of a plaintiff’s claims and so that a plaintiff may probe such matters as Defendants’ personal involvement in the challenged conduct. Iqbal, 490 F.3d at 158.
With this guidance in mind, the Court seeks to minimize the burdens of discovery by providing that the discovery that goes forward be limited and that it allow for the most efficient use of the Defendants’ time. The Court therefore orders that Plaintiffs’ discovery of the four Supervisory Defendants Myers, Torres, Weber, and Rodriguez be limited to
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interrogatories and one deposition of each supervisor, for a total of four depositions. Defendants may also seek limited discovery on Plaintiffs’ knowledge of issues concerning qualified immunity of the four supervisors. After the discovery, the parties may move for appropriate relief on the issue of the Supervisory Defendants’ qualified immunity.
VII. Accordingly, this Court denies Defendants’ motions to dismiss except that it grants the dismissal of claims brought by the anonymous Roe Plaintiffs, and it further Orders discovery on the issue of qualified immunity of the Supervisory Defendants is to be completed within sixty days.

May 6, 2009

s/Peter G. Sheridan PETER G. SHERIDAN, U.S.D.J.

43

 
 Case: 10-1479 Document: 003110306015 Page: 1 Date Filed: 10/06/2010
No. 10-1479
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________________
MARIA ARGUETA; WALTER CHAVEZ; ANA GALINDO; W.C., by and through his parents Walter Chavez and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS; JUAN ONTANEDA; VERONICA COVIAS; YESICA
GUZMAN,
Appellees,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); JULIE L. MYERS, Assistant Secretary for Immigration and Customs Enforcement; JOHN P. TORRES, Deputy Assistant Director for Operations, Immigration and Customs Enforcement; SCOTT WEBER, Director, Office of
Detention and Removal Operations, Newark Field Office; BARTOLOME RODRIGUEZ, Former Director, Office of Detention and Removal Operations,
Newark Field Office; JOHN DOE ICE AGENTS 1-60; JOHN SOE ICE SUPERVISORS 1-30; JOHN LOE PENNS GROVE OFFICERS 1-10
Julie L. Myers, Bartolome Rodriguez, John P. Torres, Scott Weber,
Appellants. _______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ____________________
BRIEF FOR THE APPELLANTS _______________________
TONY WEST Assistant Attorney General PAUL FISHMAN United States Attorney BARBARA L. HERWIG 202-514-5425 HOWARD S. SCHER 202-514-4814 Attorneys, Appellate Staff Civil Division, Room 7239 Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

Case: 10-1479 Document: 003110306015 Page: 2 Date Filed: 10/06/2010
TABLE OF CONTENTS Page
Statement of Subject Matter and Appellate Jurisdiction. . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues Presented For Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement of Related Cases and Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Factual Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Proceedings Below.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. Because Defendants Did Not Individually Participate In The Alleged Unconstitutional Conduct, Qualified Immunity Applies. . . . . . . . 21 B. The District Court Lacked Personal Jurisdiction Over Myers And Torres. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Certificate of Bar Membership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Certificate of Service
i

Case: 10-1479 Document: 003110306015 Page: 3 Date Filed: 10/06/2010
TABLE OF AUTHORITIES Cases: al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009),
petition for cert. filed ___ S. Ct. ___, 79 U.S.L.W. 3062 (U.S. July 16, 2010), No. 10-98 . . . . . . . . . . . . 25, 28-29 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). . . . . . . . . . 2, 14-15, 17-30, 32, 35-37, 39-41, 46, 52 Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 16 Bayer v. Monroe County Children & Youth Servs., 577 F.3d 186 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23, 29, 33, 36, 35, 37, 39, 41 Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . 36 Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). . . . . . . . 17, 20, 21, 23-25, 29-31, 42, 47 Carty v. Beech Aircraft Corp., 679 F.2d 1051 (3d Cir. 1982). . . . . . . . . . . . 50, 51 City of Canton v. Harris, 489 U.S. 378 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . 31 Clebda v. H.E. Fortna and Brother, Inc., 609 F.2d 1022 (1st Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Correctional Serv. Corp. v. Malesko, 534 U.S. 61 (2001). . . . . . . . . . . . . . . 21, 24 County of Sacramento v. Lewis, 523 U.S. 833 (1998). . . . . . . . . . . . . . . . . . . . . 31
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Case: 10-1479 Document: 003110306015 Page: 4 Date Filed: 10/06/2010
D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3rd Cir. 2009), cert denied, 130 S. Ct. 2340 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 45
Daniels v. Williams, 474 U.S. 327 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 DeJames v. Magnificence Carriers, Inc., 654 F.2d 280
(3d Cir.1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Doe v. Am. Nat’Red Cross, 112 F.3d 1048 (9th Cir. 1997). . . . . . . . . . . . . . 46, 47 Durham v. Lappin, No. 05-1282, 2006 WL 2724091 (D. Colo.
Sept. 21, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber and
Resin Intermediates, S.A.S., 269 F.3d 187 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Estelle v. Gamble, 429 U.S. 97 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Farmer v. Brennan, 511 U.S. 825 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Ferrone v. Onorato, No. 07-4299, 298 Fed. Appx. 190 (3d Cir. 2008).. . . . . . . 31 Gen. Elec. Co. v. Deutz AG, 270 F.3d 144 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . 2 Hanson v. Denckla, 357 U.S. 235 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Harlow v. Fitzgerald, 457 U.S. 800 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . 21, 33 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Hill v. Pugh, No. 02-1561, 75 Fed. Appx 715 (10th Cir. 2003).. . . . . . . . . . . . . 43 Hunter v. Hydrick, 129 S. Ct. 2431 (2009) (Mem.) vacating Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007). . . . . . . . . . . . . 25
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Case: 10-1479 Document: 003110306015 Page: 5 Date Filed: 10/06/2010
IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir.1998).. . . . . . . . . 16, 43 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). . . . . . . . . . . . . . . . . . . . 43, 44 James v. Reno, No. 99-5081, 1999 WL 615084 (D.C. Cir.
July 2, 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-47 Johnson v. Rardin, No. 91-1211, 952 F.2d 1401, 1992 WL
9019 (10th Cir. Jan. 17, 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Mahmud v. Oberman, 508 F. Supp.2d 1294 (N.D. Ga. 2007),
aff’d sub nom. Mahmud v. DHS, No. 07-13311, 262 Fed. Appx 935 (11th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Malley v. Briggs, 475 U.S. 335 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007). . . . . . . . . . . . . . . . . . . . . 45 McCabe v. Basham, 450 F. Supp.2d 916 (N.D. Iowa 2006). . . . . . . . . . 45-47, 49 Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir.2004).. . . . . . . . . . . . 41-43 Moss v. U.S. Secret Service, No. 06-3045, 2007 WL 2915608 (D. Or. Oct. 7, 2007), rev’d in part, dismissed in part on other grounds, Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). . . . . . . . . . . . . . . . . 28 Nat’l Union Fire Ins. Co. v. Am. Eurocopter Corp., No. CV 09-136, 2009 WL 2849130 (D. Haw. Aug. 26, 2009). . . . . . . . . . . . . . . . . . . . . . . . 50 Nwanze v. Philip Morris Inc., 100 F. Supp.2d 215 (S.D.N.Y. 2000).. . . . . . 45-46 O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312 (3d Cir. 2007).. . . . . . . . 44, 45 Padilla v. Yoo, 633 F. Supp.2d 1005 (N.D. Cal. 2009). . . . . . . . . . . . . . . . . . . . 15
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Case: 10-1479 Document: 003110306015 Page: 6 Date Filed: 10/06/2010
Pettengill v. Curtis, 584 F. Supp.2d 348 (D. Mass. 2008). . . . . . . . . . . . . . . 50-51 Provident Nat’l Bank v. California Federal Sav. & Loan Ass'n,
819 F.2d 434 (3rd Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Randall v. Pettiford, No. 08-3594, 2010 WL 1072164
(D.S.C. Feb. 22, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Rank v. Hamm, No. 04-0997, 2007 WL 894565
(S.D.W.Va. Mar. 21, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Reingold v. Deloitte Haskins & Sells, 599 F. Supp. 1241
(S.D.N.Y. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-51 Remick v. Manfredy, 238 F.3d 248 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 44 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988). . . . . . . . . . . . . . . . . . . 34-35 Siegert v. Gilley, 500 U.S. 226 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Spuglio v. Cabaret Lounge, No. 09-2195, 344 Fed. Appx 724
(3rd Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Stafford v. Briggs, 444 U.S. 527 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Vu v. Meese, 755 F. Supp. 1375 (E.D. La. 1991). . . . . . . . . . . . . . . . . . . . . . . . . 47 Wag-Aero, Inc. v. United States, 837 F. Supp. 1479
(E.D. Wis. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Constitution:
United States Constitution: First Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 15, 16 Fifth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 15
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Case: 10-1479 Document: 003110306015 Page: 7 Date Filed: 10/06/2010
Statutes: Immigration and Nationality Act ("INA"):
8 U.S.C. 1101, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8 U.S.C. 1252(b)(9).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 8 U.S.C. 1252(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 8 U.S.C. 1357(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 31 Regulations: 8 C.F.R. 287.5(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Rules: Fed. R. App. P. 4(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Local Appellate Rule 28.1(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 10-1479 __________
MARIA ARGUETA; WALTER CHAVEZ; ANA GALINDO; W.C., by and through his parents Walter Chavez and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS; JUAN ONTANEDA; VERONICA COVIAS; YESICA
GUZMAN v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); JULIE L. MYERS, Assistant Secretary for Immigration and Customs Enforcement; JOHN P. TORRES, Deputy Assistant Director for Operations, Immigration and Customs Enforcement; SCOTT WEBER, Director, Office of
Detention and Removal Operations, Newark Field Office; BARTOLOME RODRIGUEZ, Former Director, Office of Detention and Removal Operations,
Newark Field Office; JOHN DOE ICE AGENTS 1-60; JOHN SOE ICE SUPERVISORS 1-30; JOHN LOE PENNS GROVE OFFICERS 1-10
Julie L. Myers, Bartolome Rodriguez, John P. Torres, Scott Weber, Appellants. __________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY __________
BRIEF FOR THE APPELLANTS __________
Statement Subject Matter and Appellate Jurisdiction
The district court entered its order denying qualified immunity and finding
personal jurisdiction to exist on Jan. 27, 2010. JA 64A; DDE # 136. See also

Case: 10-1479 Document: 003110306015 Page: 9 Date Filed: 10/06/2010
District Court Opinion II (JA 46; DDE # 135). Defendants filed their notice of appeal on February 9, 2010 (JA 65; DDE # 139), which was timely under Rule 4(a), Fed. R. App. P.
The Court has appellate jurisdiction over this appeal under 28 U.S.C. 1291. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Iqbal holds that the denial of qualified immunity is immediately appealable under the Cohen collateral order doctrine,1 where, as here, supervisory defendants allege that plaintiffs have not pled sufficient facts to demonstrate the personal involvement of the supervisory defendants in the unconstitutional conduct alleged. See id. at 1945-1947.2
The Court has also held that it has appellate jurisdiction over challenges to a district court’s ruling on personal jurisdiction where the ruling is “inextricably bound” to an appealable order. See, e.g., Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 149 (3d Cir. 2001); E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber and Resin Intermediates, S.A.S., 269 F.3d 187, 203 (3d Cir. 2001). The latter principles apply here; in this case, the personal jurisdiction question overlaps
1 See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). 2 Plaintiffs agree that the Court has appellate jurisdiction to hear the challenge to the district court’s denial of qualified immunity. See Plaintiffs-Appellees’ Response to the February 25, 2010, Court Order Regarding Appellate Jurisdiction (“Response”), filed March 22, 2010, at 3, 8-9.
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considerably with qualified immunity question. Thus, the Court should exercise jurisdiction over this issue along with the qualified immunity issue.3
Statement of the Issues Presented For Review 1. Whether each of the four supervisory defendants was entitled to qualified immunity because plaintiffs failed to plead sufficient factual information to demonstrate each defendant’s personal involvement in the constitutional violations asserted. See Motion to Dismiss filed July 8, 2008 (JA 361; DDE # 35-1 at p. 34); Reply to Opposition to Motion to Dismiss (JA 472; DDE # 66 at p. 20); Motion to Dismiss Second Amended Complaint (JA 601; DDE # 108-2 at p. 12); Reply to Opposition to Motion to Dismiss Second Amended Complaint (JA 684; DDE # 119 at p. 2); Opposition to Partial Motion to Dismiss (JA 411; DDE # 57 at p. 26); Sur-Reply in Response to Reply Brief (JA 484; DDE # 71 at p. 5); Opposition to Motion to Dismiss Second Amended Complaint (JA 652; DDE # 115 at p. 6); District Court Opinion (“Opinion I”) filed May 7, 2009 (JA 38; DDE # 94 at p. 38); District Court order filed May 7, 2009 (JA 44; DDE # 95); District Court Opinion II (“Opinion II”) filed Jan. 27, 2010 (JA 54; DDE # 135 at p. 9); District Court order filed Jan. 27, 2010 (JA 64A; DDE # 136) (district court rulings).
3 Plaintiffs disagree that the Court has appellate jurisdiction over the challenge to the district court’s ruling on personal jurisdiction. See Response, supra, n.2 at 1016.
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2. Whether the district court lacked personal jurisdiction over two supervisory federal officials because they were located in Washington, DC, and had no personal contacts in New Jersey. See Motion to Dismiss filed July 8, 2008 (JA 356; DDE # 35-1 at p. 29); Reply to Opposition to Motion to Dismiss (JA 470; DDE # 66 at p. 18); Motion to Dismiss Second Amended Complaint (JA 611; DDE # 108-2 at p. 22); Reply to Opposition to Motion to Dismiss Second Amended Complaint (JA 695; DDE # 119 at p. 13); Opposition to Partial Motion to Dismiss (JA 415; DDE # 57 at p. 30); Opposition to Motion to Dismiss Second Amended Complaint (JA 671; DDE # 115 at p. 25); Opinion I filed May 7, 2009 (JA 35; DDE # 94 at p. 35); District Court order filed May 7, 2009 (JA 44; DDE # 95); Opinion II (JA 47; DDE # 135 at p. 2); District Court order filed Jan. 27, 2010 (JA 64A; DDE # 136)
Statement of Related Cases and Proceedings This case has not previously been before this Court. Counsel for the appellants is not aware of any related cases or proceedings within the meaning of Local Appellate Rule 28.1(a)(2).
Statement of the Case This action arises from efforts of the United States Immigration and Customs Enforcement (“ICE”) to remove from the United States illegal aliens,
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including illegal aliens who are a threat to national security, pose a threat to the community, were convicted of crimes, or have disregarded formal orders of removal. Pursuant to national enforcement initiatives authorized by Congress, ICE conducted operations in North Bergen, Paterson, Clifton, Newark, and Salem County, New Jersey, to apprehend illegal aliens identified as residing in those areas. The operations at issue here occurred in August and November 2006, March and December 2007, and January and April 2008. The Immigration and Nationality Act (“INA”), 8 U.S.C. 1101, et seq., empowers any authorized agent, without a warrant, “to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation [relating to the admission, exclusion, expulsion, or removal of aliens] and is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. 1357(a)(2).
Plaintiffs contend that individual ICE agents violated the Fourth and Fifth Amendments in conducting searches and arresting individuals and that the supervisory defendants (the appellants in this case) failed to conduct meaningful investigations into the alleged conduct of individual ICE agents, failed to provide guidance or training on how to conduct searches and seizures, and failed to
5

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discipline for the alleged unconstitutional conduct. Plaintiffs sued all defendants in their individual capacities and sought money damages.
Statement of Facts 1. Factual Background. a. In 2002, the Immigration and Naturalization Service (“INS”) began the National Fugitive Operations Program to seek out and arrest fugitive aliens — non-United States citizens not currently in the custody or control of an agency of the government who have failed to depart the United States pursuant to a final order of removal, deportation or exclusion, or have failed to report to an immigration officer after receiving notice to do so. After INS was subsumed into the Department of Homeland Security (“DHS”), the Detention and Removal Operations (“DRO”) section of ICE continued the program as the number of fugitive aliens in the country rose rapidly.4 As of October 2006, fifty Fugitive Operations Teams were operational nationwide. DHS launched “Operation Return to Sender,” which continued to combine the resources of the former INS program with those of other state and local law enforcement agencies in order to effectuate
4 In June 2010, Detention and Removal Operations (DRO) became Enforcement and Removal Operations (ERO). This brief refers to Detention and Removal Operations or “DRO” because that was the name of the office during the events at issue in this lawsuit.
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the arrest of fugitive aliens. Opinion II (JA 49-50; DDE # 135 at pp. 4-5); First Amended Complaint Ex. C (JA 247; DDE # 15-4 at 1).
Under Operation Return to Sender, officials conduct investigations by “focus[ing] their efforts on specific fugitive aliens at specific locations; that is, by prioritizing fugitive aliens by those who (1) are a threat to national security, (2) pose a threat to the community, (3) were convicted of violent crimes, (4) are convicted felons, and (5) are non-criminal fugitives.” Opinion II (JA 49-50; DDE # 135 at 4-5) (internal quotation marks omitted). In order to accomplish their goal of identifying, arresting, and removing fugitive aliens, Fugitive Operation Teams use leads and other intelligence based information. Id. at 5 (JA 50).
Arrests of fugitive aliens are most often based on administrative warrants. When an immigration judge orders an alien removed, DRO issues a “Warrant of Deportation/Removal.” These warrants are administrative in nature, as opposed to judicial, and are unlike arrest warrants. While an arrest warrant allows police officers to enter a residence to arrest a person, a warrant of removal allows ICE officers to arrest but not to enter a home unless they obtain consent to do so or some other circumstance justifies entry.5 In order to obtain knowing and
5 Ancillary to their arrest authority based on the warrant of removal, ICE agents are authorized to question any person about their immigration status. 8 C.F.R. 287.5(a)(1). However, an officer may only detain an individual for further
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voluntarily consent from a dwelling’s occupants during operations, Fugitive Operation Teams request permission to enter a residence and utilize interpreters where necessary; if granted permission, agents enter and secure the premises to ensure officer safety. If there is an arrest after a search, family members are provided a telephone number to call in order to locate the arrested individual. In addition, arrestees are afforded an opportunity to make a telephone call and to acquire legal services. Opinion II (JA 50-51; DDE # 135 at 5-6).
b. In this case, nine plaintiffs — who include U.S. citizens, lawful permanent residents, aliens who were subject to removal, and aliens who have been removed from the United States — filed suit against former Assistant Secretary of Homeland Security for ICE Julie L. Myers; former ICE Director of DRO, John P. Torres;6 Field Office Director for the Newark, New Jersey ICE field office, Scott Weber, and Deputy Director, Bartolome Rodriguez; and 90 Doe ICE
questioning if the officer has “reasonable suspicion that the individual has committed a crime, is an alien who is unlawfully present, is an alien with status who is either inadmissible or removable from the United States, or is a non-immigrant who is required to provide truthful information to DHS upon demand.” First Amended Complaint Ex. D (JA 314; DDE # 15-6 at 2). 6 Torres served as Director for DRO from 2005 until March 2008. From March 2008 until November 2008 and again for a brief period in 2009, he served as Deputy Assistant Secretary for Operations. Torres now serves as the Special Agent in Charge for ICE in Washington, DC.
8

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Agents and Supervisors stationed in the Newark, New Jersey ICE field office, alleging constitutional violations. Plaintiffs contend that individual ICE agents forced their way into plaintiffs’ homes, conducted searches, and arrested occupants without a warrant or consent; that, once inside their homes, some ICE agents engaged in abusive and conscience-shocking conduct, such as drawing their guns and shouting at the occupants; and that the “home raids” were illegal and were a predictable consequence of arrest “quotas” that high-ranking ICE officials established for arresting immigrants with outstanding deportation orders. Plaintiffs sued all defendants in their individual capacities. They seek money damages for alleged Fourth and Fifth Amendment violations, claiming that, as a result of defendants’ conduct, they were subject to unreasonable home entries, unreasonable home searches, unreasonable seizures, excessive force, violations of substantive due process, denial of access to counsel and denial of equal protection under the law. Three plaintiffs seek declaratory and injunctive relief against various official-capacity federal defendants and ICE. Plaintiffs have included claims against local law enforcement defendants as well. Opinion II (JA 51-53; DDE # 135 at 6-8). See also Second Amended Complaint (JA 530-532, 536-537; DDE # 106 at ¶¶ 1-6, 27).
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Case: 10-1479 Document: 003110306015 Page: 17 Date Filed: 10/06/2010
In the Second Amended Complaint,7 plaintiffs alleged that Myers and Torres oversaw an increase in Fugitive Operation Teams without implementing training — unspecified in the Second Amended Complaint — deemed necessary by plaintiffs. Plaintiffs alleged that, although Myers and Torres had been put on notice of the unconstitutional home raid practices of ICE agents through repeated media coverage and lawsuits filed against them, both failed to conduct meaningful investigations, to provide guidelines or training, or to discipline any officer for unconstitutional conduct. Instead, according to plaintiffs, both “foster[ed] an institutional culture of lawlessness” at ICE, Opinion II (JA 52; DDE # 135 at p. 7); Second Amended Complaint (JA 532; DDE # 106 at p. 4 ¶ 5), and contributed to the unlawful conduct by lauding as successful ICE’s increase in arrests, see Opinion II (JA 51-53; DDE # 135 at pp. 6-8); Second Amended Complaint (JA 561-563; DDE # 106 ¶¶ 144-148).
According to plaintiffs, Weber and Rodriguez oversaw Operation Return to Sender in New Jersey and supposedly knew that ICE agents were entering and searching homes without a warrant or consent. They allegedly failed to implement
7 The allegations against the four individuals are identical in both the First and Second Amended Complaints. Compare, e.g., First Amended Complaint (JA 173174, 177-178, 210-213; DDE # 15 at ¶¶ 5, 24-28, 191-199) with Second Amended Complaint (JA 531-532, 534-535, 561-564; DDE # 106 at ¶¶ 5, 19-22, 144-152).
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any guidelines, protocols, training, oversight or record-keeping requirements to ensure officers acted within constitutional limits. Without offering specifics, plaintiffs generally contend that neither Weber nor Rodriguez conducted investigations or disciplined officers responsible for unconstitutional conduct. Instead, plaintiffs assert, both publicized the increase in arrests, while allowing the unconstitutional means by which the arrests were made to continue unchecked. Second Amended Complaint (JA 563-564; DDE # 106 ¶¶ 149-152).
In addition, following each count in the Second Amended Complaint, plaintiffs include generalized boilerplate allegations to the effect that, “[u]pon information and belief, defendants * * * participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear training and under the pressure of sharply-increased quotas, would violate the * * * rights of individuals suspected of being undocumented immigrants * * *.” See, e.g., Second Amended Complaint (JA 565, 567, 568, 570, 572, 573; DDE # 106 at ¶¶ 157, 165, 174, 183, 192, 200).
2. Proceedings Below. a. In July 2008, the four named federal supervisory defendants filed a motion to dismiss the First Amended Complaint. JA 318; DDE # 35-1. The
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motion to dismiss made five principal arguments. First, defendants argued that the district court lacked subject matter jurisdiction over the claims of some of the plaintiffs who were aliens subject to removal proceedings because the Immigration and Nationality Act (“INA”), specifically, 8 U.S.C. 1252(b)(9) and 1252(g), divested the court of jurisdiction. Motion to Dismiss First Amended Complaint (JA 341; DDE # 35-1 at p. 14). Second, they argued that special factors, including Congress’ comprehensive regulation through the INA and the plenary power of the political branches over immigration and national security matters, preclude these same plaintiffs from seeking damages directly under the Constitution. Id. at 348; DDE # 35-1 at p. 21. Third, defendants contended that the court lacked personal jurisdiction over the two DC-based officials. Id. at 356; DDE # 35-1 at p. 29. Fourth, defendants argued that the court lacked jurisdiction over five anonymous plaintiffs because they had not demonstrated that proceeding anonymously was justified. Id. at 337; DDE # 35-1 at p. 10. Finally, defendants asserted that they were entitled to qualified immunity because plaintiffs had not alleged that any of the four of them personally participated in the alleged violations of constitutional rights. Id. at 361; DDE # 35-1 at p. 34.
In May 2009, the district court denied in substantial part the motion to dismiss the First Amended Complaint. See Opinion I filed May 7, 2009 (JA 1;
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DDE # 94). The court agreed that the anonymous plaintiffs must reveal their identity in order to proceed. The court accordingly dismissed all five anonymous plaintiffs without prejudice, providing them until May 27, 2009, to amend the complaint to reveal their identities. Id. at 19 (JA 19; DDE # 94 at p. 19). The court rejected defendants’ remaining arguments, finding that plaintiffs had alleged sufficient facts to demonstrate that the court has personal jurisdiction over the two high-level DC-based defendants and that the court has subject matter jurisdiction over the claims of plaintiff Ontaneda (a removed alien). The court determined that no special factors precluded the plaintiffs Ontaneda and Argueta from pursuing a federal constitutional claim. Id. at 19-38 (JA 19-38; DDE # 94 at pp. 19-38). Finally, as to qualified immunity, the court determined that there was an insufficient record on which “to shut the door on a qualified immunity defense.” Id. at 42 (JA 42; DDE # 94 at p. 42). It noted that the allegations in the First Amended Complaint were based on “hearsay” newspaper articles, but that plaintiffs had adequately provided fair notice and the grounds on which the claims rest, which was all the court believed was required at the motion to dismiss stage. Ibid. In short, the court determined that it needed more evidence to assess whether defendants were personally involved in any unconstitutional conduct. As such, the court ordered 60 days of “limited” discovery, during which each of the four
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defendants could be deposed and interrogatories propounded. Id. at 42-43 (JA 4243; DDE # 94 at 42-43).
b. Shortly after the issuance of the May 2009 opinion and order, the Supreme Court decided Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Accordingly, defendants immediately moved for reconsideration in light of Iqbal, see JA 508 (DDE # 99-1), but before briefing on the motion for reconsideration was completed, plaintiffs filed their Second Amended Complaint (in part, identifying one plaintiff who had previously sought to proceed anonymously), see JA 529 (DDE # 106). Out of an abundance of caution, therefore, defendants moved to dismiss the Second Amended Complaint, raising qualified immunity (with supplemental argument based on Iqbal), as well as raising and preserving the other threshold arguments previously included in the motion to dismiss the First Amended Complaint. See Motion to Dismiss (JA 583; DDE # 108-2). As noted, the allegations in the Second Amended Complaint and First Amended Complaint are identical with respect to the Bivens defendants. See n.7, supra.
The court again denied the motion to dismiss and denied the motion for reconsideration except for one equal protection claim raised by one plaintiff. See Opinion II (JA 46, DDE # 135; Order dated Jan. 27, 2010 (JA 64A, DDE # 136). The court denied defendants’ personal and subject matter jurisdiction arguments,
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citing the “Court’s previous opinion.” Opinion II (JA 47; DDE # 135 at p. 2). As to qualified immunity, the court determined that plaintiffs’ assertions concerning the four supervisory defendants were “sufficient at this stage ‘to state a claim to relief that is plausible on its face.’” Id. at 18 (JA 63; DDE # 135 at 18) (quoting Iqbal, 129 S. Ct. at 1949). The court found that the alleged facts were sufficient to demonstrate that the defendants “‘set in motion a series of events’ that resulted in the deprivation of the Plaintiffs’ Fourth Amendment rights.” Ibid. (citing Padilla v. Yoo, 633 F. Supp.2d 1005, 1036 (N.D. Cal. 2009)). The court distinguished Iqbal because, in its view, the claims of invidious discrimination involved there (in violation of the First and Fifth Amendments) — where the claims were against officials at the highest level of the federal law enforcement hierarchy who were concerned with national policy — required a higher level of pleading where supervisory officials were concerned. Id. at 10, 12, 14-15 (JA 55, 57, 59-60; DDE # 135 at pp. 10, 12, 14-15). Here, in contrast, the court determined that the allegations of “actual knowledge or acquiescence” by the four defendants — who (according to the district court) were not at the highest level of the federal hierarchy — were sufficient to allege a Fourth Amendment claim against supervisory officials. Id. at 10-13 (JA 55-58; DDE # 135 at pp. 10-13). The court held that “there is a plausible claim against each Individual Federal
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Defendant that their personal involvement, direction and knowledge or acquiescence permitted a search of the residence of plaintiffs without consent in violation of the Fourth Amendment.” Id. at 16 (JA 61; DDE # 135 at p. 16).
c. The four supervisory defendants timely filed their notice of appeal on February 9, 2010. See JA 65; DDE # 139. Subsequently, on May 18, 2010, the district court stayed discovery until resolution of the instant appeal. See JA 67; DDE # 170. On June 15, 2010, the court denied reconsideration of the stay order. See JA 68; DDE # 178.
Standard of Review Review by this Court is plenary when a denial of qualified immunity turns solely on a question of law. See Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir. 2003). Although the Court does not evaluate the sufficiency of the evidence to prove the facts allegedly giving rise to a constitutional claim, the Court determines whether the facts identified by the district court constitute a violation of a clearly established constitutional right. Ibid. The Court also engages in plenary review over an appeal concerning personal jurisdiction. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 258 (3d Cir.1998).
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Summary of the Argument 1. Plaintiffs seek damages from four supervisory federal officials. In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court held that government officials may not be held liable for the unconstitutional conduct of their subordinates. Even a supervisor’s knowledge of, and acquiescence in, a subordinate’s wrongful conduct is not sufficient to hold a supervisor liable in an action pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Instead, plaintiffs must plead that each government-official defendant, through the official’s own individual actions, has violated the Constitution. Based on these principles, the district court erred in not dismissing the Bivens claims against the four supervisory defendants on qualified immunity grounds. First, plaintiffs’ Second Amended Complaint describes the claims against the defendants in terms of “supervisory liability.” As Iqbal makes clear, there is no respondeat superior liability in Bivens actions; liability can only be based on each supervisor’s individual conduct. Second, Iqbal rejected the very legal theory proffered by plaintiffs here. Plaintiffs essentially alleged that the supervisory defendants developed lawful policies that led to the allegedly unlawful conduct at issue, supervised agents who implemented those lawful policies, failed to provide guidelines for, or train line
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agents in, the proper implementation of the policy, and/or failed to discipline line agents who engaged in allegedly unconstitutional conduct. However, in virtually identical circumstances — where the complaint described the supervisory official as the “principal architect” of an unconstitutional policy as well as someone allegedly instrumental in the adoption, promulgation, and implementation of that policy — Iqbal found qualified immunity to apply. Moreover, plaintiffs’ complaint here is even weaker than the complaint in Iqbal because plaintiffs have not alleged the implementation of an unconstitutional policy by any of these defendants. A fortiori, plaintiffs’ complaint here should have been dismissed.
Importantly, there is not one allegation in plaintiffs’ complaint that the four defendants searched or seized any of the plaintiffs or participated in or planned any of the specific operations at issue. Even if the Second Amended Complaint could be said to allege constitutional violations by individual ICE agents who were involved in the searches and arrests at issue, those agents are several layers of command removed from Weber and Rodriguez and even further removed from Myers and Torres. In this connection, Myers and Torres (as of 2007) oversaw an agency with more than 15,000 employees (working in the United States and around the world) and a budget of more than $3.1 billion. The district court’s conclusion that Myers and Torres are two or three position levels below the
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Secretary of Homeland Security and, therefore, somehow distinguishable from the Director of the FBI in Iqbal is simply wrong. For example, like the FBI Director, Myers reported to her agency head (the Secretary of DHS), was Presidentiallyappointed and Senate-confirmed, was concerned with both national and international policy, and, thus, was at the same level of the hierarchical structure as the FBI Director in Iqbal. Indeed, Myers’ supervisory authorities and responsibilities extended well beyond the Detention and Removal Operations program at issue here.
Allegations that Myers and Torres oversaw the implementation of a fivefold increase in Fugitive Operation Teams and an increase in arrest goals — notwithstanding alleged “notice” “via press reports, lawsuits, and congressional testimony” of alleged unconstitutional conduct — does not describe illegal or unconstitutional conduct. Rather, these allegations are entirely consistent with lawful conduct. The same is true of plaintiffs’ assertions that defendants were directly responsible for overseeing the operations and for executing Operation Return to Sender in New Jersey and made certain statements to the media regarding the success of the program. These assertions are conclusory and therefore not entitled to be presumed true. Even if these allegations were considered factual rather than conclusory, the conduct described — promoting
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increased enforcement efforts, senior-level oversight of nationwide initiatives, and making statements to the media — is plainly constitutional and appropriate in light of the government’s interest in implementing the immigration laws. The allegation that certain defendants ignored newspaper articles or lawsuits containing allegations of unlawful activity that occurred somewhere in the United States, like many of the allegations, was based “upon information and belief,” and has no more content than the allegations found insufficient to survive a motion to dismiss on qualified immunity grounds in Iqbal.
2. The district court also erred in denying Myers’ and Torres’ motion to dismiss for lack of personal jurisdiction. Plaintiffs’ did not make a prima facie showing that these defendants are subject to personal jurisdiction in New Jersey. Neither Myers nor Torres was present at any ICE enforcement action conducted in New Jersey. And neither lives or works in New Jersey; at all times relevant to the claims in the Second Amended Complaint, they served in senior positions at ICE headquarters in Washington, DC. The district court itself did not cite to any contact that these defendants had in New Jersey; rather, the court asserted personal jurisdiction over them because they allegedly “directed their supervisory activities at New Jersey.” As other authorities make clear, that is an insufficient basis for exercising personal jurisdiction over federal officials in a Bivens suit.
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Argument A.
Because Defendants Did Not Individually Participate In The Alleged Unconstitutional Conduct, Qualified Immunity Applies.
The plaintiffs seek damages from the personal resources of four supervisory federal government officials: the former Assistant Secretary of Homeland Security, ICE; the former Director, DRO; and both the Field Office Director and the Deputy Field Office Director for ICE/DRO in Newark. Government officials, however, are immune from civil liability when 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). See also Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The qualified immunity doctrine enunciated in Harlow was formulated precisely to allow government officials, such as these four supervisory officials, the necessary latitude to vigorously exercise their authority without the chill and distraction of damages suits, by ensuring that only personal conduct that unquestionably violates the Constitution will subject an official to individual liability. Thus, while “[t]he purpose of Bivens is to deter individual federal officers from committing constitutional violations,” Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001), qualified
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immunity is a broad doctrine and protects “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986)).
1. In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court clarified the general pleading standards under Rule 8, Fed. R. Civ. P., and the specific requirements for Bivens actions. The Court reaffirmed the principle that Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Conclusory allegations — described by the Court as “formulaic recitation[s] of the elements of a cause of action,” or “naked assertions devoid of further factual enhancement” — are insufficient to survive a motion to dismiss. Ibid. (citing Twombly, 550 U.S. at 577) (internal quotation marks omitted).
The Court also clarified the “plausibility” standard previously announced in Twombly. Under that standard, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ibid. (quoting Twombly, 550 U.S. at 570). This test is not satisfied if the complaint alleges facts that are “merely consistent with,” or allow room for, the “possibility” that the defendant acted unlawfully. Twombly, 550 U.S. at 557. Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. In other words, to survive a motion to dismiss, the complaint must contain enough factual content, “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Iqbal rejected the idea that “a claim just shy of a plausible entitlement to relief” should be allowed to proceed in the hopes that groundless claims will “be weeded out early in the discovery process through careful case management.” 129 S. Ct. at 1953 (internal quotation marks omitted). Such an idea is fundamentally at odds with the qualified immunity doctrine’s “basic thrust of * * * free[ing] officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’” Ibid. (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991)). If a complaint fails to allege facts sufficient to state a non-conclusory, plausible claim for relief, the plaintiff “is not entitled to discovery, cabined or otherwise.” Id. at 1954.
Iqbal also examined the elements necessary for pleading in a Bivens action against supervisory defendants, and stated that “Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” 129 S. Ct. at 1948. See also ibid. (supervisors “may not be
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held accountable for the misdeeds of their agents.”).8 Accordingly, a supervisor’s knowledge of, and acquiescence in, a subordinate’s wrongful conduct is not sufficient to hold a supervisor liable in a Bivens action. Ibid. See also Correctional Serv. Corp. v. Malesko, 534 U.S. at 70-71 (federal officers may only be subject to suit for constitutional violations if they are “directly responsible” for them). Instead, a plaintiff must plead that “each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Id. at 1948. See also id. at 1949 (“[i]n a * * * Bivens action — where masters do not answer for the torts of their servants — the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct”). Conclusory allegations of unlawful acts or motives are insufficient; a plaintiff must allege facts that plausibly support the legal conclusions. Allegations “consistent with” illegal conduct are insufficient when they are “more likely” explained by legal conduct, 129 S. Ct. at 1950, and “[t]hreadbare recitals of the elements of a cause of
8 See also 129 S. Ct. at 1955 (“the majority * * * does away with supervisory liability under Bivens”) (Justice Souter, dissenting).
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action, supported by mere conclusory statements” “do not suffice” to overcome the
qualified immunity defense, id. at 1949.9
2. a. Pursuant to the foregoing principles, the Bivens claims against the
four supervisory defendants should have been dismissed on qualified immunity
grounds. First, plaintiffs themselves describe their claims against the defendants
in terms of “supervisory liability.” See Second Amended Complaint (JA 531-532,
561-564; DDE # 106 ¶¶ 5, 144-152). Iqbal makes clear that a Bivens action
cannot be premised on such liability.
9 As far as we are aware, this Court has yet to address whether Iqbal altered the analysis for holding supervisory officials liable in Bivens actions. In the one case we are aware of, Bayer v. Monroe County Children & Youth Servs., 577 F.3d 186, 191 n.5 (3d Cir. 2009), the Court stated that, “[i]n light of the Supreme Court’s recent decision in Ashcroft v. Iqbal, * * * it is uncertain whether proof of such personal knowledge [of a constitutional violation], with nothing more, would provide a sufficient basis for holding [a supervisor] liable * * * under § 1983.” Recently, the Ninth Circuit relied on prior precedent establishing that a supervisor can be held liable “for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury.” al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009), petition for cert. filed, __ S. Ct. __, 79 U.S.L.W. 3062 (U.S. July 16, 2010) (No. 10-98). It is unclear whether this Ninth Circuit standard remains viable after Iqbal. See Hunter v. Hydrick, 129 S. Ct. 2431 (2009) (Mem.), vacating Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007) (which relied on the “setting into motion” standard of liability). See also al-Kidd v. Ashcroft, 580 F.3d at 992 n.13 (Bea, J., dissenting) (“It is doubtful that the majority’s ‘knowing failure to act’ standard survived Iqbal.”). Even so, that standard has not been adopted by the this Court.
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Second, Iqbal rejected the very legal theory proffered by plaintiffs here,
which is essentially that defendants developed lawful policies that were
implemented unlawfully by line agents over which they had national or regional
supervisory authority. See Second Amended Complaint (JA 531-532, 534-535,
537-538, 561-564; DDE # 106 ¶¶ 5, 19-22, 28-32, 144-152). Indeed, in Iqbal, the
Court found qualified immunity to apply where the complaint described the
supervisory official as the “principal architect” of an unconstitutional policy,
allegedly “instrumental in [the] adoption, promulgation, and implementation” of
that policy, and who purportedly knew or should have known that constitutional
violations were occurring, but failed to correct them. 129 S. Ct. at 1951. The
complaint here is even weaker because inter alia plaintiffs have not alleged the
implementation of an unconstitutional policy by any of these defendants.
b. Plaintiffs summarize their allegations as follows:
Despite aggressively increasing the arrest quotas and the number of agents participating in “Operation Return to Sender,” and thereafter being notified — via press reports, lawsuits, and congressional testimony — of the widespread allegations of unconstitutional and abusive conduct by ICE agents as part of this program, the DHS supervisory officials named in this Complaint have continued to foster an institutional culture of lawlessness. Specifically, they have failed to develop meaningful guidelines or oversight mechanisms to ensure that home arrests are conducted within constitutional limits, to provide the agents involved with adequate training (or for some newer agents, any training) on the lawful execution of fugitive
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operations, or otherwise ensured accountability for the failure to conduct fugitive operations within constitutional limits. On the contrary, on many occasions, DHS supervisory officials have proudly publicized the increasing numbers of arrests made as a result of the unconstitutional raids that continue to be carried out in the shadows and the dark of night. Second Amended Complaint (JA 531-532; DDE # 106 ¶ 5). See also Opinion II (JA 52; DDE # 135 at 7). Consistent with the foregoing, the allegations with respect to the four supervisory defendants fall into two categories, neither of which is sufficient under Iqbal to survive a motion to dismiss based on qualified immunity grounds. One, plaintiffs allege that defendants were on notice (had knowledge) that some ICE agents in jurisdictions other than New Jersey were allegedly engaging in unconstitutional and abusive conduct and essentially permitted or encouraged the conduct by doing nothing. And, two, relatedly, plaintiffs allege that defendants failed to develop guidelines or other mechanisms to ensure that ICE agents implemented the Operation Return to Sender program in a constitutional manner. See Opinion II (JA 52; DDE # 135 at 7). And see Second Amended Complaint (JA 534-535, 561-564, 565, 567, 568, 570, 572, 573-574; DDE # 106 ¶¶ 19-22, 144-152, 157-158, 165-166, 174-175, 183-184, 192-193, 200-201) (allegations regarding each defendant).
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Plaintiffs’ “knowledge” allegations are virtually identical to the allegations found insufficient in Iqbal — where the plaintiff alleged that the then-Attorney General (Ashcroft) and Director of the FBI (Mueller) “knew of, condoned, and willfully and maliciously agreed to subject [Iqbal]” to harsh conditions, that Ashcroft was the “principal architect” of the policy, and that Mueller was “instrumental” in adopting and executing it, id. at 1951 (internal citations omitted) — and thus are plainly insufficient. See ibid. (such allegations are “bare assertions” whose “conclusory nature * * * disentitles them to the presumption of truth.”). A complaint simply does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 129 S. Ct. at 1949 (alterations in original). Cf. Moss v. U.S. Secret Service, 572 F.3d 962, 967-972 (9th Cir. 2009) (as to Secret Service line agents, plaintiffs’ allegations were entirely conclusory and therefore did not meet Iqbal pleading standards; case remanded to allow plaintiffs to amend because complaint was pre-Iqbal).10
10 Even in al-Kidd v. Ashcroft, 580 F.3d 949, supra, n.9, where the Ninth Circuit established a very permissive, post-Iqbal interpretation of the pleading standard vis-a-vis supervisory officials, the court dismissed a conditions-of-confinement claim brought by a person detained as a material witness. See al-Kidd v. Ashcroft, 580 F.3d at 979. The dismissed claim alleged that the Attorney General promulgated highly restrictive detention policies that caused plaintiff to be subjected to the harsh conditions about which he was complaining. Ibid. In addition, the court said that, “[w]hile it is possible that [certain] reports were sufficient to put Ashcroft on notice by spring of 2003 that there was a systemic
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Plaintiffs’ allegations that defendants failed to train, investigate, and discipline (hereinafter “failure to train”) are also insufficient to state a Bivens claim. First, these allegations are not independent of, and in fact derive their essence from, plaintiffs’ “notice” and “knowledge” allegations: defendants could not be guilty of a failure to train unless they were on notice (had knowledge) of the allegations of unconstitutional conduct by ICE agents in implementing the Operation Return to Sender program. Thus, because they are entirely dependent on the “knowledge” allegations, the “failure to train” allegations suffer from the same infirmity as the “knowledge” allegations as discussed above.
Second, the “failure to train” allegations are devoid of any factual enhancement. Although the complaint provides some factual support for what allegedly took place at each residence, absent from the complaint are facts to indicate that any action taken (or not) by these particular defendants constituted a clearly established constitutional violation. Iqbal requires some subsidiary facts to “nudge” a plaintiff’s claims across the line from “conceivable to plausible.” 129
problem at the [Department of Justice] with respect to its treatment of material witnesses, the non-specific allegations in the complaint regarding Ashcroft’s involvement fail to nudge the possible to the plausible, as required by Twombly.” Ibid. As noted in n.9, supra, the government has filed a petition for certiorari challenging al-Kidd’s conclusion that al-Kidd met Iqbal’s pleading standard vis-avis the other claims in the complaint.
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S. Ct. at 1950-51. Although plaintiffs include conclusory allegations that all four defendants failed to train, investigate or discipline, they do not identify any specific training that was warranted, not provided, and would have prevented the alleged unconstitutional conduct; nor do they allege any official was directly responsible for line agent training. Similarly, they fail to identify any discipline or investigation that was required, warranted, or would have prevented the claimed constitutional violations. In fact, their only allegations actually attributable to the defendants are Myers’ statements that “officers are required to obtain consent before they are permitted to enter private residences” and that officials at DHS and ICE “take reported allegations of misconduct seriously and will fully investigate all allegations * * *.” First Amended Complaint Ex. D (JA 313, 314; DDE # 15-6 at 1, 2). Both statements are clearly consistent with constitutional requirements and thus undermine any claim of unconstitutional conduct. Furthermore, if plaintiffs’ “failure to train” allegations were sufficient to establish a cause of action, Iqbal would be rendered virtually meaningless: such boilerplate allegations can always be made against high-ranking or supervisory government officials.
Third, even if plaintiff’s failure-to-train allegations had been properly pled, they still would not state a Bivens claim. Negligence is insufficient to state a
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constitutional claim. See, e.g., Ferrone v. Onorato, No. 07-4299, 298 Fed. Appx. 190, 194 (3d Cir. 2008) (“negligent ministerial action falls short of the affirmative abuse of governmental power against which the Constitution guards”); County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process”); and Daniels v. Williams, 474 U.S. 327, 333 (1986) (“[I]njuries inflicted by government negligence are not addressed by the United States Constitution.”). See also Farmer v. Brennan, 511 U.S. 825 (1994); Estelle v. Gamble, 429 U.S. 97 (1976). Failure-to-train allegations may be pertinent to entity liability under 42 U.S.C. 1983, see, e.g., Farmer v. Brennan, 511 U.S. at 840-841 (citing cases); City of Canton v. Harris, 489 U.S. 378, 388, 391 (1989), but not to individual-capacity liability under Bivens.
c. Importantly, there is not one allegation that the four defendants searched or seized any of the plaintiffs or participated in or planned any of the operations at issue. Even if the Second Amended Complaint could be said to allege constitutional violations by individual ICE agents who were involved in the searches and arrests at issue, those agents are several layers of command removed from Weber and Rodriguez and even further removed from Myers and Torres. In this connection, Myers and Torres (during the events at issue) oversaw an agency
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with more than 15,000 employees (working in the United States and around the world) and a budget of more than $3.1 billion. First Amended Complaint Ex. C (JA 248; DDE # 15-4 at 2). (The exhibits to the First and Second Amended Complaints are the same.) The district court’s conclusion that Myers and Torres “are two or three position levels below the Secretary of Homeland Security” and, therefore, somehow distinguishable from the Director of the FBI in Iqbal is simply wrong. Opinion II (JA 60; DDE # 135 at 15) (distinguishing Iqbal). For example, like the FBI Director, Myers reported to her agency head (the Secretary of DHS), was Presidentially-appointed and Senate-confirmed, was concerned with both national and international policy, and, thus, was at the same level of the hierarchical structure as the FBI Director in Iqbal. Indeed, Myers’ supervisory authorities and responsibilities at ICE Headquarters extended well beyond the Detention and Removal Operations program at issue here. See First Amended Complaint Ex. C (“Organization Chart”) (JA 248; DDE # 15-4 at 2).
d. The allegations that defendants aggressively increased arrest “quotas”11 as well as the number of agents participating in the Operation Return to Sender program — notwithstanding alleged “notice” “via press reports, lawsuits, and
11 Plaintiffs use the term “quotas” in the complaint, but the documents attached to the complaint refer to “goals,” not “quotas.” See, e.g., First Amended Complaint Ex. C (JA 254, DDE # 15-4 at 8) (“annual apprehension goals”).
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congressional testimony” of alleged unconstitutional conduct — does not describe illegal or unconstitutional conduct. These allegations are entirely consistent with lawful conduct and are best understood as focusing on techniques for the lawful enforcement of the immigration laws, rather than illegal conduct. See Twombly, 550 U.S. at 567 (concluding that although conduct was consistent with unlawful behavior, allegations did not suggest illicit accord because it was not only compatible with, but indeed more likely explained by, lawful behavior). Indeed, promoting vigorous enforcement of the law is a central aim of the qualified immunity doctrine. See, e.g., Harlow v. Fitzgerald, 457 U.S. at 818 (qualified immunity “is designed to shield government officials from the burdens and costs of litigation and to prevent disruption of governmental responsibilities”); and see, supra, at pp. 21-22. Simply put, one cannot infer unconstitutional conduct from mere allegations that enforcement efforts of a lawful program have increased.
Plaintiffs do not allege that the enforcement of the immigration laws of which Fugitive Operation Teams and Operation Return to Sender were part is illegal, and, as previously noted, Myers’ statement — that “officers are required to obtain consent before they are permitted to enter private residences” and that officials at DHS and ICE “take reported allegations of misconduct seriously and will fully investigate all allegations,” First Amended Complaint Ex. D (JA 313;
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DDE # 15-6 at 1) — indicates that the supervisory officials understood the constraints of the law in implementing these enforcement techniques. Increasing arrest goals and enforcement efforts thus does not equate to, or even suggest, illegal conduct; both allegations are, simply put, completely consistent with enforcing lawful policies.
e. Plaintiffs’ unadorned claim that defendants were aware of allegations of misconduct by ICE agents somewhere in the United States is simply insufficient to demonstrate that defendants had personal knowledge of their subordinates’ alleged conduct in this case.12 See, e.g., Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988). In Rode, this Court held that numerous newspaper articles, the introduction of a legislative resolution seeking an investigation into retaliation, the filing of grievances in the Governor’s office of administration, and telephone calls and correspondence with the Lieutenant Governor’s office were insufficient to show that the Governor had actual knowledge of the alleged misconduct. Id. at 1208.
Here, the unsubstantiated claims (to which plaintiffs point) of a handful of alleged violations occurring over the course of several years somewhere in the United States in an agency of over 15,000 employees does not trigger a constitutional obligation to undertake particular actions. See Rode v.
12 But see Op. II (JA 53; DDE # 135 at 8) (rejecting that argument). 34

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Dellarciprete, 845 F.2d at 1208. This is especially true where, as here, the policy as described by Myers, see First Amended Complaint Ex. D (JA 314; DDE # 15-6 at 2), is that agents are required to obtain consent to enter homes. In any event, even if the official capacity lawsuits, media reports, and Congressional testimony could be deemed to have put defendants on notice of allegations of unconstitutional conduct, plaintiffs alleged nothing that defendants should have done in the form of training or investigation nor did they point to anything beyond their own generalized ipse dixit (“[u]pon information and belief,” Second Amended Complaint (JA 565, 567, 568, 570, 572, 573-574; DDE # 106 ¶¶ 157158, 165-166, 174-175, 183-184, 192-193, 200-201) that nothing was done.
Even more troubling, perhaps, is that such boilerplate assertions about failing to act — without any factual allegations about what should have been done, but was not — can be made against any high-ranking government official in any agency. It simply cannot be the case that the principles established in Iqbal can be so easily circumvented. See also Rode v. Dellarciprete, 845 F.2d at 1208.
3. As to Myers and Torres, specifically, plaintiffs allege that they “facilitated the creation of a culture of lawlessness and lack of accountability within an agency they supervise,” and failed to provide specific guidelines or training to fugitive operations agents, or to meaningfully discipline any officer
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responsible for unconstitutional conduct. Second Amended Complaint (JA 561, 562-563; DDE # 106 ¶¶ 144, 148). For reasons already stated, these allegations are insufficient to hold high-ranking supervisory federal officials subject to personal liability. They are conclusory, devoid of factual content, and are implausible given Myers’ statement — upon which both plaintiffs and the district court rely — that the operations at issue require consent and that officials at DHS and ICE “take reported allegations of misconduct seriously and will fully investigate all allegations,” First Amended Complaint Ex. D (JA 313; DDE # 15-6 at 1). See Iqbal, 129 S. Ct. at 1949-50; Twombly, 550 U.S. at 553-54 (“[f]actual allegations must be enough to raise a right to relief above the speculative level”); Benzman v. Whitman, 523 F.3d 119, 129 (2d Cir. 2007) (“a bare allegation that the head of a Government agency * * * knew that her statements were false and ‘knowingly’ issued false press releases is not plausible in the absence of some supporting facts”).
Plaintiffs also allege that Myers and Torres oversaw the implementation of a five-fold increase in Fugitive Operation Teams and an increase in arrest goals, Second Amended Complaint (JA 561; DDE # 106 ¶ 144); that arrests were made “pursuant to the nationwide interior immigration enforcement strategy announced by defendant Myers and [Secretary] Chertoff,” Second Amended Complaint (JA
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562-563; DDE # 106 ¶ 148 (emphasis added)), that Torres had “direct responsibility for the execution of fugitive operations” within Operation Return to Sender, Second Amended Complaint (JA 562; DDE # 106 ¶ 147); and that Myers and Torres allegedly lauded as successful an increase in arrests, Second Amended Complaint (JA 562-563; DDE # 106 ¶ 148). As noted previously, these actions are plainly constitutional and appropriate in light of the government’s interest in implementing the immigration laws. See Iqbal, 129 S. Ct. at 1951; Twombly, 550 U.S. at 567.
Contrary to the district court’s recitation of allegations contained in the Second Amended Complaint, nowhere in the Second Amended Complaint do plaintiffs allege that Myers “directly implemented the specific [Operation Return to Sender] program,” Opinion II (JA 59; DDE # 135 at 14), that Myers and Torres “worked on these issues every day,” id. (JA 60; DDE # 135 at 15), or that Myers and Torres “wrote the policy,” ibid. The court plainly erred in this regard. Even so, none of these actions is constitutionally suspect. The court also erroneously stated that plaintiffs alleged that individual federal defendants “directly initiated the unconstitutional home raid practices at issue,” Opinion II (JA 59; DDE # 135 at 14); that allegation, too, is not found in the Second Amended Complaint. In the Second Amended Complaint, plaintiffs simply allege that ICE press releases
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describing arrests under Operation Return to Sender have stated that those arrests were made pursuant to a nationwide immigration strategy “announced by * * * Myers and Michael Chertoff.” Second Amended Complaint (JA 534, 562-563; DDE # 135 ¶¶ 19, 148). Plaintiffs do allege that Torres “had direct responsibility for the execution of fugitive operations,” Second Amended Complaint (JA 562; DDE # 106 ¶ 147), which, again, alleges nothing untoward or unconstitutional and is, in any event, conclusory.
4. As to Weber and Rodriguez, the allegations the district court relied on were: 1) that as directors of the Newark field office, Weber and Rodriguez were directly responsible for overseeing the operations and for executing Operation Return to Sender in New Jersey; 2) that both made specific comments to the media that emboldened alleged unconstitutional practices; and 3) that they ignored specific allegations of unlawful activity. See Opinion II (JA 60; DDE # 135 at 15). The first allegation describes plainly constitutional conduct.13
The second allegation claims that Weber and Rodriguez both “publicize[d] ICE’s ‘successful’ increase in New Jersey immigration arrests over the past two years,” Second Amended Complaint (JA 564: DDE # 106 ¶ 152), and that each
13 In its recitation of the facts, the court states that Rodriguez and Weber also “direct[ed] the searches of the residences,” Opinion II (JA 53; DDE # 135 at p. 8), although that allegation is not contained in the Second Amended Complaint.
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“makes frequent reports and comments on the number of arrests made by ICE agents and speaks publicly on behalf of ICE about the implementation of ‘Operation Return to Sender’ in New Jersey,” Second Amended Complaint (JA 563-564; DDE # 106 ¶ 149). These allegations are entirely consistent with lawful conduct. See Iqbal, 129 S. Ct. at 1950-51; Twombly, 550 U.S. at 567.
Moreover, plaintiffs’ contention that the comments “suggest that Defendants Rodriguez and Weber at best acquiesced in, and at worst, encouraged such behavior,” Second Amended Complaint (JA 563-564; DDE # 106 ¶ 149), is precisely the kind of naked statement held insufficient in Iqbal to overcome a motion to dismiss on qualified immunity grounds. The same is true with Weber’s comment (not attributed or attributable to Rodriguez) that he did not “see [the conduct at issue] as storming a home” but, rather, “as trying to locate someone,” ibid.14
As to the third allegation, plaintiffs simply allege that “upon information and belief,” Weber and Rodriguez “knew that ICE agents were entering and
14 Even if the quotation attributed to Weber alone were somehow indicative of “knowledge and acquiescence” in the conduct alleged in the news report — which it cannot be — the 2008 news report has no bearing on the claims of Ontaneda, Guzman, Flores, Arias, and Covias, which involved alleged conduct that predated that comment. See Second Amended Complaint (JA 551-558; DDE # 106 ¶¶ 89139).
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searching homes in New Jersey without search warrants and without obtaining voluntary, informed consent” but failed to train, investigate or discipline officers under their supervision, and allowed the unconstitutional means for many of the arrests to continue unchecked. Second Amended Complaint (JA 563-564; DDE # 106 ¶¶ 149-152). See also Second Amended Complaint (JA 563-564; DDE # 106 ¶ 149) (alleging Weber and Rodriguez “at best acquiesced in, and at worst, encouraged such behavior”). Not one fact is alleged to suggest such allegations are possible or plausible. Indeed, these allegations have no more content than those rejected in Iqbal. See Iqbal, 129 S. Ct. at 1944 (alleging that Ashcroft and Mueller “each knew of, condoned, and * * * agreed to subject” Iqbal to harsh conditions).
5. Finally, following each Count in the Complaint, plaintiffs include boilerplate allegations that, “[u]pon information and belief, defendants * * * participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear training and under the pressure of sharply-increased quotas, would violate the * * * rights of individuals suspected of being undocumented immigrants.* * *.” Second Amended Complaint (JA 536, 563, 564, 565, 567, 568, 570, 572, 573; DDE # 106 ¶¶ 23,
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148, 150-152, 157, 165, 174, 183, 192, 200). These boilerplate allegations add nothing of substance to the other allegations in the complaint discussed above and do “‘not nudge[] [plaintiffs’] claims * * * across the line from conceivable to plausible.’” Iqbal, 129 S. Ct. at 1950-1951 (quoting Twombly, 550 U.S. at 570).
_______________ In sum, plaintiffs failed to demonstrate the personal involvement of any of the supervisory defendants in the conduct alleged to be unconstitutional in this case. Accordingly, under Iqbal, the district court erred in failing to dismiss on qualified immunity grounds plaintiffs’ complaint against the four supervisory defendants.
B. The District Court Lacked Personal Jurisdiction
Over Myers And Torres. The district court also erred in denying Myers’ and Torres’ motion to dismiss for lack of personal jurisdiction.15 Plaintiffs’ did not make a prima facie showing that these defendants are subject to personal jurisdiction in New Jersey. See Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir.2004) (“To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff bears the burden of
15 The other two named defendants, Scott Weber and Bart Rodriguez, both were based in New Jersey during the events at issue.
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establishing the court’s jurisdiction”; “when the court does not hold an evidentiary hearing on the motion to dismiss, the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its favor.”). Neither Myers nor Torres was present at the ICE enforcement actions conducted in New Jersey. And neither lives or works in New Jersey; at all times relevant to the claims in the Second Amended Complaint, they served in senior positions at ICE headquarters in Washington, DC. The district court itself did not cite to any contact that these defendants had in New Jersey; rather, the court asserted personal jurisdiction over them solely because they allegedly “purposefully directed their supervisory activities at New Jersey.” Opinion I (JA 38; DDE # 94 at 38). That rationale is insufficient for exercising personal jurisdiction over federal officials in a Bivens suit, i.e., federal officials sued in their individual capacities.
1. “[T]o exercise personal jurisdiction over a defendant, a federal court * * * must undertake a two-step inquiry. First, the court must apply the relevant state long-arm statute to see if it permits the exercise of personal jurisdiction; then, the court must apply the precepts of the Due Process Clause of the Constitution. In New Jersey, this inquiry is collapsed into a single step because the New Jersey long-arm statute permits the exercise of personal jurisdiction to the fullest limits of
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due process.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d at 258-259 (emphasis added) (citing DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir.1981)). Moreover, the New Jersey Supreme Court has made it clear that New Jersey courts look to federal law for the interpretation of the limits on in personam jurisdiction. Id. at 259. See also Miller Yacht Sales, Inc. v. Smith, 384 F.3d at 96.
2. Due process requires that a defendant have “sufficient ‘minimum contacts’” within a state to subject him or her to suit there. Miller Yacht Sales, Inc. v. Smith, 384 F.3d at 96. See also Provident Nat’l Bank v. California Federal Sav. & Loan Ass’n, 819 F.2d 434, 436-437 (3rd Cir. 1987) (under the Due Process Clause, a federal court has personal jurisdiction over a non-resident defendant only where the defendant has “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”) (alteration in original) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “[T]he defendant’s conduct and connection with the forum State [should be] such that he should reasonably anticipate being haled into court there.” D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 105 (3rd Cir. 2009), cert denied, 130 S. Ct. 2340 (2010).
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“The two types of personal jurisdiction are general jurisdiction and specific jurisdiction.” O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). See also Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001); and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn.8&9 (1984). General jurisdiction requires, among other things, “systematic and continuous” contacts between a non-resident defendant and the forum state, Spuglio v. Cabaret Lounge, No. 09-2195, 344 Fed. Appx 724, 725 (3rd Cir. 2009) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)), but the district court did not find such contacts, see Opinion I (JA 35-38; DDE # 94 at 35-38), nor did plaintiffs allege any, see Second Amended Complaint (JA 534-536, 561-564; DDE # 106 ¶¶ 18-26, 144-152). Thus, the question is whether the district court correctly determined that plaintiffs established a prima facie case of specific jurisdiction, see Opinion I (JA 37-38; DDE # 94 at 37-38), and on this question, the district court clearly erred.
3. This Court undertakes a three-part inquiry to determine whether specific jurisdiction exists: “[f]irst, the defendant must have ‘purposefully directed [its] activities’ at the forum”; “[s]econd, the litigation must arise out of or relate to at least one of those activities”; and “third, if the first two requirements have been met, a court may consider whether the exercise of jurisdiction otherwise
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comport[s] with fair play and substantial justice.” D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d at 102 (internal quotation marks and citations omitted). See also O’Connor v. Sandy Lane Hotel Co., 496 F.3d at 317. The district court found that all three requirements were met. See Opinion I (JA 37-38; DDE # 94 at 37-38). It is clear, however, that plaintiffs failed at the first step and, therefore, that the district court erred for two reasons: (1) Myers and Torres did not “purposefully direct” their conduct at New Jersey simply by fulfilling their national oversight responsibilities; and (2) plaintiffs alleged jurisdiction over Myers and Torres because of their failure to act, but a failure to act cannot satisfy the “purposefully direct[ed]” standard.
a. Both due process and sound policy require a meaningful connection with the forum before such an official can be haled into any district court in the country. See generally Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007) (“Even if a defendant’s conduct could cause foreseeable harm in a given state, such conduct does not necessarily give rise to personal jurisdiction in that state.”). Courts therefore routinely find lack of personal jurisdiction over DC-based policy makers. See, e.g. McCabe v. Basham, 450 F. Supp.2d 916, 926 (N.D. Iowa 2006) (“Courts across the country have recognized that personal jurisdiction cannot be premised solely on a defendant’s supervisory status.”); Nwanze v. Philip Morris
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Inc., 100 F. Supp.2d 215, 220 (S.D.N.Y. 2000) (collecting cases) (mere supervision over a federal agency, “the reach of which extends into every state,” does not support personal jurisdiction in an individual capacity suit). Indeed, numerous courts have held that specific jurisdiction may not be exercised over federal officials based on the adoption and implementation of a national policy. See, e.g., Moss v. U.S. Secret Service, No. 06-3045, 2007 WL 2915608, at *18-19 (D. Or. Oct. 7, 2007) (“Plaintiffs have alleged that [Director of the U.S. Secret Service] Basham and the Secret Service have a nation-wide policy of engaging in viewpoint discrimination, but this standing alone is insufficient to establish that Basham purposefully directed activity towards Oregon or any of plaintiffs.”) (citing McCabe v. Basham, 450 F. Supp.2d at 924, 926), rev’d in part, dismissed in part on other grounds, Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009); Mahmud v. Oberman, 508 F. Supp.2d 1294, 1301-02 (N.D. Ga. 2007), aff’d sub nom. Mahmud v. DHS, No. 07-13311, 262 Fed. Appx 935 (11th Cir. 2008); Rank v. Hamm, No. 04-0997, 2007 WL 894565 at *11-13 (S.D.W.Va. Mar. 21, 2007); McCabe v. Basham, 450 F. Supp.2d at 924-27 (it “is not permissible” to “premis[e] jurisdiction [of] * * * two senior-level federal government officials, upon the acts of low-level federal * * * employees”) (footnote omitted)). See also, e.g., Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1050-51 (9th Cir. 1997); James
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v. Reno, No. 99-5081, 1999 WL 615084, at *1 (D.C. Cir. July 2, 1999); Vu v. Meese, 755 F. Supp. 1375, 1378 (E.D. La. 1991) (“[T]he fact that federal government officials enforce federal laws and policies on a nationwide basis is not sufficient in and of itself to maintain personal jurisdiction in a lawsuit which seeks money damages against those same governmental officials in their individual capacities”). As McCabe observed, “‘[i]f a federal agency head could be sued personally in any district within his or her official authority merely for supervising acts of subordinates * * * the minimum contacts requirement would be rendered meaningless.’” 450 F. Supp.2d at 926 (quoting Wag-Aero, Inc. v. United States, 837 F. Supp. 1479, 1486 (E.D. Wis. 1993)); see also Doe v. American Nat’l Red Cross, 112 F.3d at 1050-51 (dismissing individual capacity suit against FDA official working in Washington, DC, because of lack of contacts with forum).16
16 These decisions are consistent with the holding in Stafford v. Briggs, 444 U.S. 527 (1980), that the statute making any district court a proper venue for official-capacity suits against federal officials does not extend to Bivens suits. See id. at 544 (“Suits for money damages for which an individual office-holder may be found personally liable are quite different. If * * * suits could be brought against these federal officers while in Government service — and could be pressed even after the official has left federal service — in any one of the 95 federal districts covering the 50 states and other areas within federal jurisdiction[,] [t]his would place federal officers * * * in a very different posture in personal damages suits from that of all other persons * * *.”).
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Consistent with the foregoing, numerous courts have also held that agency officials with supervisory responsibilities over particular regions are not subject to jurisdiction in every state that falls within their supervisory purview. See Hill v. Pugh, No. 02-1561, 75 Fed. Appx 715, 719 (10th Cir. 2003) (no jurisdiction over Federal Bureau of Prisons Regional Director for responsibility over prison operations in the forum); Johnson v. Rardin, No. 91-1211, 952 F.2d 1401, 1992 WL 9019 at *1 (10th Cir. Jan. 17, 1992) (no jurisdiction over Federal Bureau of Prisons Regional Counsel for reviewing inmate’s appeals and occasionally advising prison staff members in forum state); Randall v. Pettiford, No. 08-3594, 2010 WL 1072164 at *3 (D.S.C. Feb. 22, 2010) (no jurisdiction over Federal Bureau of Prisons officials who handled plaintiff’s appeals from their offices outside the forum); Durham v. Lappin, No. 05-1282, 2006 WL 2724091 at *5 (D. Colo. Sept. 21, 2006) (no jurisdiction over Federal Bureau of Prisons regional and national officials for responding to plaintiff’s grievances).
All of plaintiffs’ allegations against Myers and Torres concern their supervisory responsibilities as agency officials overseeing nationwide policies. For Myers, who served as the highest-ranking, Presidentially appointed official within ICE, and Torres, a former director of ICE’s Office of Detention and Removal Operations, plaintiffs challenge their oversight of a national policy, see
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Second Amended Complaint (JA 531-532, 561-563; DDE # 106 ¶¶ 5, 144-148), and focus on Myers’ and Torres’ administration of the Operation Return to Sender program nationwide, see id. (JA 534-535, 561-563; DDE # 106 ¶¶ 18-20, 144148). See also pp. 35-38, supra (discussing claims against Myers and Torres). Other than the boilerplate paragraph that plaintiffs inserted in each claim, plaintiffs do not allege any facts to indicate that Myers or Torres participated in, or helped plan and execute, any aspect of the operations at issue in the Second Amended Complaint or anywhere in New Jersey for that matter. And, most significantly, there are no allegations that Myers or Torres personally has a substantial connection with New Jersey. In fact, the allegations concerning management and implementation of a national policy undercut the showing that plaintiffs must make because a national policy, by definition, cannot be expressly targeted at a particular state. See McCabe, 450 F. Supp.2d at 926. Ultimately, the fact that Myers and Torres oversaw the administration of a national policy as part of their responsibilities in Washington, DC, cannot subject them to jurisdiction in New Jersey.
b. There is also no jurisdiction over Myers and Torres because jurisdiction is premised on a failure to act. See, e.g., Second Amended Complaint (JA 562563; DDE # 106 ¶ 148). See also Opinion I (JA 38; DDE # 94 at 38
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(“omissions”). It is well-settled that an overt act is required for due process to permit the exercise of personal jurisdiction:
[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253 (1958) (emphasis added). And, in accordance with this principle, this Court has held that a failure to act does not satisfy the minimum contacts requirement. See Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1061 (3d Cir. 1982) (exercising jurisdiction based on a failure to act “would dangerously trench upon the constitutional prohibition against assertion of jurisdiction where the defendant has not purposefully availed itself of the privilege of conducting activity within the forum”). See also, e.g., Clebda v. H.E. Fortna and Brother, Inc., 609 F.2d 1022, 1023-24 (1st Cir. 1979) (“a failure to act” is insufficient; “there still must be some form of submission to the state,” citing Hanson v. Denckla, 357 U.S. at 253); Nat’l Union Fire Ins. Co. v. Am. Eurocopter Corp., No. CV 09-136, 2009 WL 2849130 at *7 (D. Haw. Aug. 26, 2009); Pettengill v. Curtis, 584 F. Supp.2d 348, 357-58 (D. Mass. 2008); cf. Reingold v. Deloitte Haskins & Sells, 599 F. Supp. 1241, 1259 n.16 (S.D.N.Y. 1984) (“we
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hesitate to premise the exercise of jurisdiction on a failure to act” citing the concerns expressed in Carty and Clebda).
The decision in Pettengill is particularly relevant. The plaintiff premised jurisdiction over executives of the Boy Scouts of America who resided outside the forum on allegations that they “had actual knowledge of [sexual] abuse problems in general and at least one incident in [the forum]” but failed to take corrective actions. Id. at 345-56. Like the plaintiffs here, the plaintiff in Pettengill alleged that the defendants failed “to put policies in place to prevent [sexual abuse]” or “did so negligently,” and these failures led to plaintiff’s injuries. Id. at 354. The court held that it could not exercise personal jurisdiction over the defendants because their only contacts with the forum were “omissions relating to their policymaking roles at [Boy Scouts of America] and correspondence with scoutmasters in [the forum] regarding abuse allegations unrelated to [the perpetrator].” Id. at 357. The court observed that transforming “a failure to act that was directed at nowhere in particular into a purposeful availment of the laws of one specific state” would make the defendants “subject to personal jurisdiction everywhere,” and thus “eviscerate the minimum contacts test for satisfying the requirements of due process.” Id. at 358-59. That principle applies with equal force here. Plaintiffs fault Myers and Torres for failing to undertake action in
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New Jersey; due process does not permit the exercise of jurisdiction over them with respect to those allegations.17
17 The decision in Iqbal — that a supervisor should not be vicariously liable for the acts of his subordinates — should apply with equal force to personal jurisdiction. Myers and Torres, throughout the events at issue, were located in Washington, DC. See Opinion I (JA 37; DDE # 94 at 37). Just because subordinates in New Jersey allegedly engaged in certain unconstitutional conduct does not mean that a supervisor, based in Washington, DC, with no personal contacts or individual conduct occurring in New Jersey, should be subject to that court’s jurisdiction.
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Conclusion For the foregoing reasons, the decision of the district court denying qualified immunity to the four supervisory defendant-appellants should be reversed. In the alternative, the complaint against defendants Myers and Torres should be dismissed for lack of personal jurisdiction.
Respectfully submitted, TONY WEST Assistant Attorney General PAUL FISHMAN United States Attorney BARBARA L. HERWIG
202-514-5425 /s/ Howard S. Scher HOWARD S. SCHER (DC Bar No. 200626)
202-514-4814 Attorneys, Appellate Staff Civil Division, Room 7239 Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
OCTOBER 2010
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Certificate of Compliance I hereby certify that, according to the word count provided in Corel WordPerfect 12, the foregoing brief contains 11,754 words. The text of the brief is composed in monospaced, 14-point Times New Roman typeface, which has 10 characters per inch. The text of the hard copy of this brief and the text of the “PDF” version of the brief filed electronically through ECF (“the E-brief”) are identical. A virus check was performed on the E-brief, using Microsoft Forefront Client Security software (version 1.91.805.0), and no virus was detected.
s/ Howard S. Scher HOWARD S. SCHER, Attorney
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Certificate of Bar Membership Counsel for the defendants-appellants are federal government attorneys and are not required to be members of the Bar of this Court.
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Certificate of Service
I hereby certify that on this 6th day of October, 2010, I caused the
foregoing Brief of the Appellants to be filed electronically with the Court and an
original and nine (9) copies to be filed in hard copy via overnight delivery
service. On this date, counsel below were served by operation of the Court’s
electronic filing system, and an appropriate number of hard copies of the brief
were served via overnight delivery service. Finally, an appropriate number of
copies of the Joint appendix were filed with the Court via overnight delivery
service and served on the counsel below via overnight delivery service:
Baher Azmy Seton Hall University School of Law 833 McCarter Highway Newark, NJ 07102 973-642-8700
Catherine Weiss Scott Walker Auroro Parrilla David Reiner Heather Bishop Kenneth Zimmerman Natalie Kraner R. Scott Thompson Lowenstein Sandler PC 65 Livingston Ave Roseland, NJ 07068 973-597-2500
s/ Howard S. Scher HOWARD S. SCHER, Attorney

 
 Case: 10-1479 Document: 003110360423 Page: 1 Date Filed: 11/24/2010

Docket No. 10-1479
______________________________________________________________________________
_____________________________________________________________________________________________________________________
UNITED STATES COURT OF APPEALS

FOR THE

THIRD CIRCUIT

MARIA ARGUETA; WALTER CHAVEZ; ANA GALINDO; W.C. by and through his parents Walter Chavez and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS; JUAN ONTANEDA; VERONICA COVIAS; YESICA GUZMAN

Plaintiffs-Appellees,

- v. -

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); JULIE L. MYERS, Assistant Secretary for Immigration and Customs Enforcement; JOHN P. TORRES,
Deputy Assistant Director for Operations, Immigration and Customs Enforcement; SCOTT WEBER, Director, Office of Detention and Removal Operations, Newark Field Office;
BARTOLOME RODRIGUEZ, Former Director, Office of Detention and Removal Operations, Newark Field Office; JOHN DOE ICE AGENTS 1-60; JOHN SOE ICE SUPERVISORS 1-30;
JOHN LOE PENNS GROVE OFFICERS 1-10

Julie L. Myers, Bartolome Rodriguez, John P. Torres, Scott Weber

Defendants-Appellants. __________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (NO. 2:08-CV-1652 (PGS)) ______________________________________________________________________________

BRIEF FOR PLAINTIFFS-APPELLEES
______________________________________________________________________________

Catherine Weiss, Esq. Scott L. Walker, Esq. Natalie J. Kraner, Esq. Aurora F. Parrilla, Esq. Heather C. Bishop, Esq. Frank T.M. Catalina, Esq. Amit Sondhi, Esq. LOWENSTEIN SANDLER PC 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500

Baher Azmy, Esq. L. Danielle Tully, Esq. Marissa Litwin, L.A.R. 46.3(a) Keara Waldron, L.A.R. 46.3(a) SETON HALL SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE One Newark Center Newark, New Jersey 07102-5210 (973) 642-8700
November 24, 2010

Case: 10-1479 Document: 003110360423 Page: 2 Date Filed: 11/24/2010
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION .......................................................................1 COUNTERSTATEMENT OF ISSUES ON APPEAL .............................................1 STATEMENT OF RELATED CASES AND PROCEEDINGS ..............................1 STATEMENT OF THE CASE..................................................................................1 STATEMENT OF FACTS ........................................................................................3 A. ICE’s Fugitive Operations Program ................................................................3 B. Dramatically Increased Warrantle ss Home Raids Under “Operation
Return to Sender” ............................................................................................4 C. Widespread Pattern of Unconstitutional Home Raids.....................................6 D. Defendants’ Knowledge of the Pattern of Unconstitutional Conduct.............8 E. The District Court Decisions .........................................................................10 SUMMARY OF ARGUMENT ...............................................................................12 ARGUMENT ...........................................................................................................15 I DEFENDANTS ARE NOT EN TITLED TO QUALIFIED
IMMUNITY BECAUSE THE COMP LAINT PLAUSIBLY STATES A CLAIM THAT THEI R OWN CONDUCT VI OLATED PLAINTIFFS’ CLEARLY ES TABLISHED FOURTH AMENDMENT RIGHTS..............................................................................15 A. Iqbal Did Not Alter the Longstandi ng Rule That Im poses
Liability on Supervisors for Their Knowledge of and Acquiescence in the Unconstit utional Conduct of Subordinates in the Fourth Amendment Context......................................................16 B. Plaintiffs Allege Su fficient Facts To Plausibly State a Clai m Against Defendants for Their K nowledge of and Acquiescence in a Pattern of Unconstitutional Conduct. ...........................................25 II THIS COURT LACKS APPELLATE JURISDICTION TO REVIEW THE DISTRICT COURT’S FI NDING OF PERSONAL JURISDICTION. ...........................................................................................36
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Case: 10-1479 Document: 003110360423 Page: 3 Date Filed: 11/24/2010
III THE COURT SHOULD NOT REVERSE THE DISTRIC T COURT’S FINDING OF PERSONAL JURISDICTION.............................39 A. Defendants Myers and Torres Ha d Sufficient Contacts with New Jersey To Justify the Exer cise of Personal Jurisdiction over Them............................................................................................40 B. Dismissal at the Pleading Stage Is Premature. ....................................45
CONCLUSION ........................................................................................................47
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TABLE OF AUTHORITIES

CASES

Pages

A.M. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572 (3d Cir. 2004) ...............................................................................20

Abi Jaoudi & Azar Trading Corp. v. Cigna Worldwide Ins. Co., Nos. 09-1297, 09-1298, 2010 WL 3279173 (3d Cir. Aug, 20, 2010) ................37

Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sep. 20, 2007) ...........................................................8

Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), cert granted in part on other grounds, 79 U.S.L.W. 3062 (U.S. Oct. 18, 2010) ...........................................................passim

Al-Kidd v. Gonzalez, No. CV:05-093, 2006 WL 5429470 (D. Idaho Sept. 27, 2006), aff’d in part, rev’d in part on other grounds, 580 F.3d 949 (9th Cir. 2009), cert. granted in part on other grounds, No. 10-98, 2010 WL 2812283 (U.S. Oct. 18, 2010) ..............................................................................................43, 44

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) .............................................................................31

Anspach ex rel. Anspach v. City of Philadelphia, Dept. of Public Health, 503 F.3d 256 (3d Cir. 2007) .................................................................................5

Arias v. ICE, No. 07-1959 (D. Minn. April 19, 2007) ...............................................................8

Arista Records v. Doe 3, 604 F.3d 110 (2d Cir. 2010) ...............................................................................34

Ashcroft v. Al-Kidd, 79 U.S.L.W. 3062 (U.S. Oct. 18, 2010) ............................................................16

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).................................................................................passim

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Case: 10-1479 Document: 003110360423 Page: 5 Date Filed: 11/24/2010
Baires v. U.S., No. C 09-5171, 2010 WL 3515749 (N.D. Cal. Sept. 8, 2010)...........................43
Baker v. Monroe Twp., 50 F.3d 1186 (3d Cir. 1995) .............................................................13, 20, 22, 24
Barrera v. Boughton, No. 07-cv-1436 (D. Conn. Sept. 26, 2007)...........................................................8
Bayer v. Monroe County Children and Youth Serv's., 577 F.3d 186 (3d Cir. 2009) ...............................................................................15
Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397 (1997)..........................................................................17, 21, 22, 23
Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007)................................................................................26, 32, 34
Bielevicz v. Dubinon, 915 F.2d 845 (3d Cir. 1990) .............................................................19, 22, 23, 31
Bivens v. Six Unknown Agents Federal Bureau of Narcotics, 403 U.S. 388 (1971).....................................................................................passim
Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001) ...............................................................................21
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006) .................................................................................5
Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir. 1999) ............................................................22, 23, 24, 33
Carty v. Beech Aircraft Corp., 679 F.2d 1051 (3d Cir. 1982) .............................................................................44
Chabal v. Reagan, 822 F.2d 349 (3d Cir. 1987) ...............................................................................32
Chao v. Ballista 630 F. Supp. 2d 170 (D. Mass. 2009).................................................................35
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Case: 10-1479 Document: 003110360423 Page: 6 Date Filed: 11/24/2010
Chinchello v. Fenton, 805 F.2d 126 (3d Cir. 1986) ...............................................................................24
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)............................................................................................18
City of Canton v. Harris 489 U.S. 378 (1989) ...............................................................................19, 21, 25
Clebda v. H.E. Fortna and Brother, Inc., 609 F.2d 1022 (1st Cir. 1979).............................................................................44
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)............................................................................................36
Connick v. Thompson, 130 S. Ct. 1880 (2010)........................................................................................24
County of Sacramento v. Lewis, 523 U.S. 833 (1998)............................................................................................35
Dever v. Hentzen Coatings, Inc., 380 F.3d 1070 (8th Cir. 2004) ............................................................................42
Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) ...................................................................passim
Dunlop v. Munroe, 7 Cranch 242 (1812) ...........................................................................................17
E.I. Dupont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F. 3d 187 (3d Cir. 2001) ..................................................................14, 37, 38
Erikson v. Pardus, 551 U.S. 81 (2007)..............................................................................................32
Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005) ...................................................................11, 16, 17
Flores-Morales v. George, No. 07-cv-0050 (M.D. Tenn. July 5, 2007) ..........................................................8
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Case: 10-1479 Document: 003110360423 Page: 7 Date Filed: 11/24/2010
Fowler v. UMPC Shadyside, 578 F.3d 203 (3d Cir. 2009) ........................................................................passim
Graham v. Connor, 490 U.S. 386 (1989)............................................................................................19
Hagan v. Rogers, No. 06-4491, 2009 WL 1851039 (D.N.J. June 24, 2009) ..................................21
Hanson v. Denckla, 357 U.S. 235 (1958)............................................................................................44
Hernandez v. Keane, 341 F.3d 137 (2d Cir. 2003) ...............................................................................21
Herring v. U.S., 129 S. Ct. 695 (2009)..........................................................................................19
Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010).........................................................................................39
Innis v. Wilson, No. 08-4909, 2009 WL 1608502 (3d. Cir. June 10, 2009).................................20
Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) ...............................................................................38
James v. Reno, No. 99-5081, 1999 WL 615084 (D.C. Cir. July 2, 1999)...................................43
Jett v. Dallas Independent Sch. Dist., 491 U.S. 701 (1989)............................................................................................31
Leatherman v. Tarrant County Narcotics Intel. and Coord. Unit, 507 U.S. 163 (1993)............................................................................................32
Lebel v. Everglades Marina, Inc., 115 N.J. 317 (1989) ............................................................................................40
Lopez v. Beard, No. 08-3699, 2009 WL 1705674 (3d. Cir. June 18, 2009).................................19
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Case: 10-1479 Document: 003110360423 Page: 8 Date Filed: 11/24/2010
Mancha v. ICE, No. 06-cv-2650 (N.D. Ga. Nov. 1, 2006) .............................................................8
Mass. School of Law at Andover, Inc. v. Am. Bar. Ass’n, 107 F.3d 1026 (3d Cir. 1997) .............................................................................45
McCabe v. Basham, 450 F. Supp. 2d 916 (N.D. Iowa 2006) ..............................................................43
McNeal v. Zobrist, 365 F. Supp. 2d 1166 (D. Kansas 2005).............................................................44
Mitchell v. Forsyth, 472 U.S. 511 (1985)......................................................................................36, 46
Mohawk Industries, Inc. v. Carpenter, 130 S.Ct. 599 (2009)...........................................................................................39
Monell v. Dep't. of Social Servs., 436 U.S. 658 (1978)......................................................................................15, 16
Montgomery v. DeSimone, 159 F.3d 120 (3d Cir. 1998) .........................................................................22, 23
Nat’l Union Fire Ins. Co. v. Am. Eurocopter Corp., No. CV 09-136, 2009 WL 2849130 (D. Haw. Aug. 26, 2009) ..........................44
Nehemiah v. Athletics Congress of the U.S.A., 765 F.2d 42 (3d Cir. 1985) .................................................................................45
Nelson v. Park Indus., Inc., 717 F.2d 1120 (7th Cir. 1983) ............................................................................42
Nwanze v. Philip Morris, 100 F. Supp. 2d 215 (S.D.N.Y. 2000) ................................................................43
O’Connor, v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312 (3d Cir. 2007) .........................................................................40, 45
Oran v. Stafford, 226 F.3d 275 (3d Cir. 2000) .................................................................................5
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Case: 10-1479 Document: 003110360423 Page: 9 Date Filed: 11/24/2010
Parrish v. Ball, 594 F.3d 993 (8th Cir. 2009) ..............................................................................20
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979)............................................................................................18
Pettengill v. Curtis, 584 F. Supp. 2d 348 (D. Mass. 2008).................................................................44
Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ...................................................................25, 33, 34
Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 1998) ....................................................................36,37, 38
Reyes v. Alcantar, No. 07-2271 (N.D. Cal. Apr. 26, 2007)................................................................8
Robinson v. Hartzell Propeller, Inc., 454 F.3d 163 (3d Cir. 2006) ...............................................................................45
Robinson v. Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) .......................................................................20, 22
Rode v. Dellarciprete, 845 F.2d 1195 (1988)..........................................................................................23
Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989) ......................................................................passim
Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009).................................................................................20
Sandra v. Grindle, 599 F.3d 583 (7th Cir. 2010) ..............................................................................20
Stoneking v. Bradford Area School Dist., 882 F.2d 720 (3d Cir. 1989) .........................................................................20, 22
Swanson v. City Bank, N.A. 614 F.3d 400 (7th Cir. 2010) .............................................................................33
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Case: 10-1479 Document: 003110360423 Page: 10 Date Filed: 11/24/2010
Swint v. Chambers County Comm’n, 514 U.S. 35 (1995)............................................................................36, 37, 38, 39
Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003) .........................................................................45, 46
Washington v. Davis, 426 U.S. 229 (1976)............................................................................................18
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196 (2d Cir. 2001) ...............................................................................42
World-Wide Volkswagen v. Woodson, 44 U.S. 286 (1980)..............................................................................................40
Zatler v. Wainwright, 802 F.2d 397 (11th Cir. 1986) ............................................................................21
In re Zyprexa Prods. Liab. Litig., 549 F. Supp. 2d 496 (E.D.N.Y. 2008) ..................................................................5
STATUTES 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. § 1292................................................................................................14, 36 42 U.S.C. § 1983...............................................................................................passim 8 U.S.C. § 1101..........................................................................................................3 RULES Appellate Rule 31.1(c) .............................................................................................49 Fed. R. Civ. P. 8(a)...................................................................................................13 OTHER AUTHORITIES Adam Steinman, The Pleading Problem, 62 STAN. L. REV. 1293, 1307-1309
(2010) ..................................................................................................................25
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April 5, 2007, Memo from Newark Field Office to Myers, available at http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/upload/ICEMemos.pdf ..........................................................................................................42
April 5, 2007, Memo from Newark Field Office to Myers, available at http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/upload/ICEMemos.pdf ..........................................................................................................46
Brief of Petitioner, Connick v. Thompson, 130 S. Ct. 1880 (2010) (No. 09571), 2010 WL 2354753, at *21-23 ............................................................................24
Federal Defendants’ Memorandum in Support of Motion to Dismiss or Alternatively for Summary Judgment, Arias v. ICE, No. 07-1959, 2009 WL 2628041 (D. Minn. July 17, 2009) ..............................................................40
Margaret Mendelson et al., Collateral Damage: An Examination of ICE’s Fugitive Operations Program (2007), available at http://www.migrationpolicy.org/pubs/NFOP_Feb09.pdf.....................................6
Nina Bernstein, Despite Vow, Target of Immigration Raids Shifted, N.Y. TIMES, Feb. 4, 2009, available at available at http://www.nytimes.com/2009/02/04/us/04raids.html .....................................5, 6
Memorandum of Law in Support of Motion to Dismiss the Complaint Against Defendants Michael Chertoff, Julie Myers, John Torres, and Marcy Forman, Aguilar v. ICE, No. 07 Civ. 8224, Dkt. No. 221 (S.D.N.Y. March 29, 2010) ...................................................................................................................40
Peter Markowitz et al., Constitution on ICE: A Report on Immigration Home Raid Operations, (2009) .......................................................................................6
Stipulation of Partial Settlement and Revised Scheduling Order, Seton Hall School of Law Center for Social Justice v. DHS, No. 08 Civ. 0521 (D.N.J. Oct. 29, 2008), ECF No. 21 ...........................................................................................................6
Sheldon Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3:2 (2008).........................................................................................................18
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Case: 10-1479 Document: 003110360423 Page: 12 Date Filed: 11/24/2010
Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability after Iqbal, 14 LEWIS & CLARK L. REV. 279, 297 (2010)....................19
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STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
Plaintiffs-Appellees agree that this Court has appe llate jurisdiction over th e district court’s denia l of Defendants-A ppellants’ motions to dism iss on qualified immunity grounds pursuant to 28 U.S.C. § 1291 and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). They disagree that this Court has jurisdiction over the district court’s interlocutory denial of Defendants’ m otions to dismiss on personal jurisdiction grounds.
COUNTERSTATEMENT OF ISSUES ON APPEAL 1. Whether Plaintiffs sufficiently pled that Defendants had personal involvement in the alleged constitutional violations so as to overcome their assertion of qualified immunity. 2. Whether the narrow boundaries of pendent appellate jurisdiction preclude this Court from reviewing the district court’s assertion of personal jurisdiction over Defendants Julie L. Myers and John P. Torres. 3. If pendent appellate jurisdiction is found, w hether the dist rict court properly exercised personal jurisdiction ov er Defendants Myers and Torres based on allegations and evidence that they dir ected aggressive enforcement activities at New Jersey, resulting in a pattern and practice of unconstitutional home raids there.
STATEMENT OF RELATED CASES AND PROCEEDINGS Counsel for Plaintiffs are aware of no related cases or proceedings.
STATEMENT OF THE CASE Plaintiffs brought t his action agains t federal and local law enforcement officials, pursuant to Bivens v. Six Un kown Agents Federal Bureau of Narcotics , 403 U.S. 388 (1971), and 42 U.S.C. § 1983. Plaintiffs c hallenge a statewide
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pattern and practice by Immigration a nd Customs Enforcement (“ICE”) of conducting warrantless, nonconsen sual raids on immigrants’ hom es that violated Plaintiffs’ clearly established Fourth Ame ndment rights. That pattern and practice was a predictable consequence of po licy decisions undertaken by Defendants Myers and Torres, and im plemented by Defendants Bartolome Rod riguez and Scott Weber, pursuant to ICE’s “Operation Return to Se nder.” Defendants Myers and Torres increased, by 800% in one year, the arrest quota fo r ICE’s Fugitive Operations Teams (“FOTs”), which wer e charged with appreh ending any and all aliens they suspected m ight be unlawfu lly present. Yet Defendants took no corresponding action to ensure that this aggressive enforcement, representing a departure in scope and purpose from prior practice, would be pursued within constitutional constraints. Across New Je rsey and the country, FOTs engaged in widespread, systematic abuses of indi viduals’ constitutional rights, regularly punctuated by viol ence, intimidation, and other conscience-shocking behavior. Despite being put repeatedly on notice of this pattern of unconstitutional behavior, Defendants not only failed to change course or rectify their subordinates’ repetitive misconduct, they in fact implicitly encouraged the violations by touting the success of their program.
On May 7, 2009, t he district court de nied Defendants’ m otion to dism iss Plaintiffs’ First Amended Co mplaint, brought on various grounds, and rejected Defendants’ claim to qualifie d immunity and Myers and Torres’ claim that the court lacked personal jurisdic tion over them . See Argueta I, JA-1-45. After Plaintiffs filed their Second Amended Co mplaint, Defendants m oved to dism iss again; this Motion argued that the intervening decision in Iqbal entitled Defendants to qualified immunity and urged the sa me grounds for dism issal as before, including a lack of personal jurisdiction. On January 27, 2010, the district court denied Defendants’ Motion. Argueta II, JA-46-64A.
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Defendants timely appealed the district court’s January 27, 2010, denial of qualified immunity, which is properl y before this Court; the y also appealed th e finding of personal jurisdiction over them, which is not properly before t his Court. JA-65.
STATEMENT OF FACTS A. ICE’s Fugitive Operations Program Defendant Myers was at all relevant times the Assistant Secretary for Homeland Security for Imm igration and Customs Enforcement, located in Washington, D.C., where sh e bore responsibility for the adm inistration of the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. (1952). JA-534 (Second Am. Compl. (“SAC”) ¶19). Defendant Torres was at all relevant times Deputy Assistant Secretary of Operations for ICE and the Director (or Acting Director) of ICE’s Office of Detention and Remov al Operations (“DRO”), which coordi nates the removal of individuals not legally perm itted to remain in the country. JA-53435 (SAC ¶20). Defendant Weber succeed ed Defendant Rodriguez (who served from approximately February-May 2007) as the Director of t he DRO Field Office in New Jersey. JA-535 (SAC ¶¶21-22). The Office of Detention and Rem oval Operations is charged with implementing ICE’s National Fugiti ve Operations Program, which seeks to locate and commence removal proceedings against so-called alien “fugitives,” defined by ICE as someone with an out standing order of removal. JA-537 (SAC ¶28). ICE implements this program through seven-person Fugitive Operations Team s, which are tasked with locating and apprehending such “fugitives.” Id.
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B. Dramatically Increased Warrantless Home Raids Under “Operation Return to Sender”
In 2006, ICE initiated “Operation Ret urn to Se nder,” which sought to dramatically increase alien apprehensi ons and rem ovals. JA-537-38 (SAC ¶¶3132). Spe cifically, Myers and Torres made a n umber of policy decisions that escalated and transformed en forcement operations without im plementing any corresponding controls to ensure they were taken within constitutional limits, even after learning that t heir decisions were causing widespread abuses. JA-561-63 (SAC ¶¶144-48). They increased the num ber of FOTs five-fold, from fifteen in 2005 to seventy-five in 2007; the number in New Jersey doubled from two to four. JA-537 (SAC ¶29). In a January 31, 2006, memorandum to all DRO Field Offices, including to the Newark, New Jersey Fi eld Office (“January 2006 Torres Mem o”), Torres ordered each FOT in the count ry to increase its quota of fugitive apprehensions from 125 t o 1000 per ye ar. JA-538 (SAC ¶30); JA-499. Thus, without increasing their size, each seven-member FOT was expected in one year to increase its rate of apprehensi on by a staggering 800%. Id. The January 2006 Torres Memo also superseded a pre-existi ng requirement that 75% of apprehended fugitives be criminals; thus, as of January 2006, apprehension of any “fugitive” – a person with an outstanding deportation order – would count toward the drastically increased quota. JA-499.
On September 29, 2006, Torres issued another mem orandum (“September 2006 Torres Memo”), instructing the Director of the Newark Field Offi ce (as well as other regional field office directors) that they would be perm itted to count “collateral apprehensions” – i.e. “non-fugitive” apprehensions of persons without outstanding deportation orders encounter ed by chance during an FOT operation – toward the 1000-apprehension quota for each FOT. JA-5 01-02. Torres instructed further that such “collateral” apprehen sions would have to be approved by DRO
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headquarters in Washington, D.C., and that the Newark Field Office must record arrest statistics so DRO headquarters c ould issue a weekly report on Fugiti ve Operations activities. JA-502-03.1
Despite representations by M yers to Congress i n 2007 t hat ICE needed additional funding in order to rem ove “primarily criminal aliens,” JA-542 (SAC ¶43), the search for “criminal aliens” or “fugitives” operated in New Jersey, as elsewhere, largely as a pretext for sw eeping up large num bers of im migrants – including U.S. citizens and lawful permanen t residents, such as a num ber of the Plaintiffs. JA-542 (SAC ¶¶43-44).2 As revealed by a data set of 600 arrest records from raids undertaken in New Jersey between February 22, 2006, and December 7, 2007, which were produced i n connection with a Freedom of Information Act
1 The January and Septem ber 2006 Torres Memos were originally subm itted for the Court’s consideration after the f iling of the First Am ended Complaint. See JA-487. The Memos were properly be fore the District Court on a m otion to dismiss because they are matters of public record. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (on a motion to dismiss courts may rely on documents outside the pleadings if the y (i) are incorporated by reference or integral to the claim, (ii) are items subject to judicial notice, or (iii) are matters of public record); Anspach ex rel. Anspach v. City of Philadelphia, Dept. of Public Health, 503 F.3d 256, 273 n.11 (3d Cir. 2007) (“Courts ruling on Rule 12(b)(6) motions may take judicial notice of public records.”) (citation om itted); see also Oran v. Stafford, 226 F.3d 275, 289 (3d Cir. 2000) (SEC filings are public records for purposes of j udicial notice on m otion to dismiss); In re Zyprexa Prods. Li ab. Litig., 549 F. Supp. 2d 496, 50 1 (E.D.N.Y. 2008) (same as to documents issued by government agencies). 2 Of the 2,079 persons arrested in Ne w Jersey in FY 2007, 87% had no criminal history. JA-542 (SAC ¶43); see also Nina Bernstein, Despite Vow, Target of Immigration Rai ds Shifted, N.Y. TIMES, Feb. 4, 2009, at A1, available at http://www.nytimes.com/2009/02/04/us/04raids.html (under Operation Return to Sender, “nearly three-quarters of the 96 ,000 people [ICE] apprehended had no criminal convictions”).
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litigation brought by Seton Hall Law School, 3 only 37% of arrests by New Jersey FOTs involved the actual target of th e home raid; the majority (63%), were “collateral” arrests of pe rsons encountered by chance, and without outstanding deportation orders.4 Nationwide, in the year afte r the Torres Mem os were issued, collateral apprehensions rose to com prise 40% of all FOT arrests, while crim inal arrests dropped to nine percent of all apprehensions.5
C. Widespread Pattern of Unconstitutional Home Raids A widespread pattern and practice of unlawful home raids emerged in New Jersey, and nationwide, as a predictable consequence of the Defendants’ decisions to dramatically escalate arrest quotas and to encourage FOTs’ apprehension of “collaterals,” without any precautions against foreseeable misconduct by agents previously accustomed to apprehending “criminal fugitive alie ns.” Even after Defendants had repeatedly be en put on notice of the pattern of abuses, they initiated neither corrective actions nor modifications to ICE policy. 6 The Complaint recounts this pattern in de tail, see JA-538-42 (SAC ¶¶33-42), and

3 See Stipulation of Partial Settlem ent and Revised Sc heduling Order, Seton Hall School of Law Center for Social Justice v. DHS , No. 08 Civ. 0521 (D.N.J. Oct. 29, 2008), ECF No. 21.

4 In a February 19, 2008, ra id in Passaic, an FOT raided thirt een homes in

search of only six persons, but returned with twelve arrestees. JA-543 (SAC ¶45);

see also Peter Markowitz et al., Constitution on ICE: A Report on Immigration

Home Raid Operations , at 11 (2009),

available at

http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/immigrationlaw-

741/IJC_ICE-Home-Raid-Report%20Updated.pdf.

5 Bernstein, supra note 2.

6 See Markowitz et al., supra note 4 (documenting nationwide pattern of warrantless, nonconsensual raids and abusive FOT conduct); Margaret Mendelson et al., Collateral Damage: An Examination of ICE’s Fugitive Operations Program (2007), available at http://www.migrationpolicy.org/pubs/NFOP_Feb09.pdf (same).

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reveals what the district court described as the “strikingly sim ilar” way in which each Plaintiff’s home raid followed the broader pattern. Argueta I, JA-3.
All of the Plaintiffs were pursued as “collateral apprehensions” and could not have been classified as “fugiti ves” let alone “crim inal fugitives.” JA-544-58 (SAC ¶¶49-139). In all cases, Plaintiffs were awoken from their sleep in early morning hours by l oud banging on t heir door. See, e.g., JA-544-45 (SAC ¶51) (Plaintiff Argueta awakened at 4:30 a.m. “by very loud banging on the door and windows of her buil ding,” which she thought woul d “break the windows and the door”); see also JA-553 (SAC ¶106), JA-555 (SAC ¶120 ). In most of the raids in this action, ICE agents announced themselv es as “police” an d in all cases entered without a judicial warrant, either by using deception or force the moment Plaintiffs opened the door. See, e.g., JA-545 (SAC ¶56) (ICE Agents deceived Plaintiff Argueta into believing they needed acce ss to her apart ment in search of a criminal); JA-548 (SAC ¶74) (ICE Agen ts grabbed and pushed Plaintiff Chavez from outside his house through his front door and stated, “If you don’t open the door, we’re going to m ake things worse.”); see also JA-551 (SAC ¶93) (forcing way into Plaintiff Flores’ home af ter he opened door), JA-553 (SAC ¶109) (preventing Plaintiff Ontaneda from closing his door), JA-555 (SAC ¶121) (pushing open door and entering Plaintiff Covias’ home). In each case, m ultiple ICE agents entered the home, searched each room, and roused all persons from their sleep in order t o question them about their im migration status. See e.g., JA552 (SAC ¶97) (rousing Plaintiff Aria s from bed); JA-558 (SAC ¶¶135-36) (forcing family members from bed).
In several cases, ICE Agents had guns drawn or pointed at persons i n the home, and threatened, humiliated, or demeaned them. JA-549 (SAC ¶79) (pointing guns at mother and child during Chavez family raid); JA-547 (SAC ¶65) (mocking and laughing at Plai ntiff Argueta and denying her request to speak to a lawyer);
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JA-558 (SAC ¶¶ 137, 139) (yelling at Pl aintiff Guzman to “shut up!” and threatening to have her children taken by the st ate). Others were unlawfully detained. See JA-546-47 (SAC ¶¶61-63) (jailing Plaintiff Argueta despite her easily verifiable Temporary Protected Status). Seven of the Plaintiffs were either U.S. citizens or lawful residents at the tim e of the raids on t heir homes; in none of the raids did the purported “t arget” reside in the hom e raided. See JA-544-58 (SAC ¶¶49-139).
D. Defendants’ Knowledge of the Pattern of Unconstitutional Conduct
Defendants were repeatedly put on noti ce that a pattern of unl awful conduct by ICE officers had emerged in New Jers ey (and throughout the nation) following the decision to octuple the fugi tive and collateral arrest quota. First, as alleged in the Complaint, there were wi despread media reports of the abuses in New Jersey and beyond. See JA-559-61 (SAC ¶143) (citing news reports detailing abuses in New Jersey raids and in othe r regions). Prior to this litigation, Myers and Torres were sued numerous times for their roles in promoting or tolerating nearly identical patterns of unconstit utional and abusive raids in various other jurisdictions. JA 561 (SAC ¶145) (cit ing, e.g., Aguilar v. ICE , No. 07-cv-8224 (S.D.N.Y. Sep. 2 0, 2007) (suing Myers and Torres); Flores-Morales v. George, No. 07-cv-0050 (M.D. Tenn. July 5, 2007) (sam e); Arias v. ICE, No. 07-1959 (D. Minn. April 19, 2007) (same); Mancha v. ICE, No. 06-cv-2650 (N.D. Ga. Nov. 1, 2006) (same); see also Barrera v. Boughton, No. 07-cv-1436 (D. Conn. Sept. 26, 2007) (alleging identical practices but not suing Myers and Torres); Reyes v. Alcantar, No. 07-2271 (N.D. Cal. Apr. 26, 2007) (same)).
Moreover, in June 2007, bot h members of Congress and the National Immigration Forum lodged complaints directly with the Departm ent of Homeland Security about wide spread “misconduct” during the ICE home raids. JA-559
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Case: 10-1479 Document: 003110360423 Page: 21 Date Filed: 11/24/2010
(SAC ¶141); JA-562 (SAC ¶146); JA- 313. Responding to the National Immigration Forum complaint, Myers acknowledged that only five of the twentynine persons arrested were actually fugi tives but argued t hat ICE “cannot t urn a blind eye to illegal aliens once encountered.” JA-314. She also conceded that ICE home raids occur without judicial warra nts and therefore require knowing and voluntary consent from the resident, but she averred that ICE had ensured such consent by assigning a Spanish-speaking officer to each FOT. Id. Torres, too, was specifically warned about unconstituti onal conduct by ICE officers under his supervision.7
The criticism, so me of it directed spec ifically to Myers, continued in a hearing before the Subcommittee on Homeland Security in February 2008, causing ICE to acknowledge that U.S. citizens ha d been wrongfully detained and even deported. JA-543 (SAC ¶46) . In addi tion, New Jersey Senator Robert Menendez stated that he met with Myers and DHS Secretary Chertoff to complain about the widespread constitutional violations occurring during raids in New Jersey and that, despite numerous lawsuits filed against them, they denied wrongdoi ng. JA-441. Even the United Nations publicly critici zed ICE’s “frequent disregard of due process” and forced hom e entries. JA-559 (SAC ¶142) (Report of U.N. Special Rapporteur on the Human Rights of Migrants).
In addition, in 2007, the DHS Office of Inspector General (OIG) issued a report that publicly criticized ICE for its incomplete and inaccurate record-keeping, understaffing, and incom plete training. JA-543-44 (SAC ¶47); JA-241.
7 The Mayor of New Haven called Torre s in June 2007 to inform him of allegations that FOTs “bar ged into houses without warra nts and verbally abused the people and children were manhandled .” JA-562 (SAC ¶147). The Mayor specifically put t he question t o Torres of whether ICE should allow such hom e raids to continue with these allegations pending. Id.
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Specifically, OIG noted that the DRO database, from which FOTs identified

“fugitive” targets, was inaccur ate approximately 50% of the time; criticized ICE

for hiring in 2006 (presu mably to meet staffing requirements for the increased

number of FOTs) lower-level, less expe rienced officers to conduct fugiti ve

operations; and expre ssed concerns about the incom plete training of t hese rookie

officers. Id.

As the Co mplaint alleges, not only di d Defendants fail to change Fugitiv e

Operations policy or apprehension i ncentives, conduct meaningful investigations

into the widespread unlawful practices, or provide specific guidelines or training to

FOTs to ensure that home entries

and searches were conducted within

constitutional limits, JA-562-63 (SAC ¶¶ 148) (Myers and Torres); JA -564 (SAC

¶¶150-52) (Weber and Ro driguez), Defendants implicitly encouraged the

continuation of such behavior by publiciz ing the “success” of the dramatically

increased home raids, JA-563 (SAC ¶148) (citing Newark Field Office press

releases dated May 1, 2007, April 2, 2007, March 1, 2007, Nov. 20, 2006, Oct. 19,

2006). Weber and Rodriguez also frequen tly commented to the media regarding

allegations of m isconduct by FOTs, e ffectively admitting to the asserted

wrongdoing. See JA-563-64 (SAC ¶149) (W eber brushed off specific concerns

about the patterns of unlawful searches in New Jersey by stating, “I don’t see it a s

storming a home . . . . I see it as trying to locate someone.”).

E. The District Court Decisions On May 7, 2009, the district court denied Defendants’ m otion to dismiss the First Amended Complaint, except that it di smissed those Plaintiffs who wished to proceed anonymously. See Argueta I , JA-19. On the question of the court’s personal jurisdiction over Myers and Torres, the district court concluded that they

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“certainly had suffi cient minimum contacts with New Jersey based upon thei r

specific actions with reference to [Operation Return to Sender].” Argueta I, JA-37.

Evaluating Defendants’ claim of qualif ied immunity, the court recogni zed

that a plaintiff is precluded from basing liability on “the theory of respondeat

superior,” but must allege fact s that show a defendant’s “personal involvement in

alleged wrongdoing,” – a standard that can be satisfied by alle gations of eithe r

“personal direction or knowledge and acquiescence.” JA-39 (quoting Evancho v.

Fisher, 432 F.3d 347, 353 (3d Cir. 2005));

see also Argueta I , JA-39-42

(articulating various ways to dem onstrate knowledge and acquiescence in Third

Circuit). Given the prelim inary stage of the litigation, when discovery had not yet

begun, the court held that “the complaint sufficiently asserts the claim.” Argueta I,

JA-42.

On June 8, 2009, Plaintiffs filed the Second Amended Complaint, which

identified one of the previousl y pseudonymous Plaintiffs as Yesica Guzman, and

removed several others who chose not to proceed if they would be publicly

identified. JA-529. On June 18, 2009, Defendants filed a Motion to Dism iss the

Second Amended Com plaint. JA-583. This second m otion sought di smissal on

grounds identical to the First, excep t that the Defendants argue d that the

intervening decision in Iqbal eliminated the possibility of asserting supervisory

liability on any substantive claim on the basis of “knowledge of acquiescence” and

that, therefore, Plaintiffs’ allegations agai nst the Defendants were insufficient as a

matter of law. Id.

In a decision dated January 27, 2010, t he district court denied the

motion. Argueta II, JA-46. The court took special care in addressing – and

rejecting – Defendants’ characterization of Iqbal as eliminating any and all forms

of supervisory liability. Acknowledging that a Bivens claim for supervisory

liability will “vary with the cons titutional provision at issue,” Argueta II, JA-55

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(quoting Iqbal, 128 S. Ct. at 1941), the district court held that a supervisor’s

liability can still rest on knowledge

and acquiescence where, as here,

discriminatory purpose is not nece ssary to state the clai m asserted, Argueta II, JA59-61; see also Argueta I, JA-40-43.8 Thus, the Court concluded that the

allegations in the Second Am ended Complaint, like the identical allegations in the

First Amended Co mplaint, “plausibly” stat ed a claim for violation of Plaintiffs’

clearly established Fourth Amendment rights. Argueta II, JA-59-61.

SUMMARY OF ARGUMENT The only issue properly before this Court is whether Defendants are entitled to qualified immunity. In arg uing that the Complaint fails sufficiently to plead Defendants’ personal involvement in the violation of Plaintiffs’ clearly established Fourth Amendment rights, Defendants place f ar more wei ght upon Iqbal than it can bear. First, contrary to Defendants’ characterization, Iqbal did not elim inate the possibility of liability based on a supe rvisor’s knowledge of, and acq uiescence in, a subordinate’s unconstitutional conduct. Defs.’ Br. 24. Applying longstanding principles, Iqbal recognized that a supervisor’s liability m ust be based on allegations of his or her own misconduct, which could include the supervisor’s “own neglect in not properly superinten ding the discharge of his subordinates’ duties.” Iqbal, 129 S. Ct. at 1948 (internal citati ons and quotations omitted). The Iqbal court stressed that pleading such li ability “will vary with the constitutiona l provision at issue.” Id. To support his claim of racial or religious disc rimination against high-level officials in Iqbal, the plaintiff would ha ve had to allege that these officials them selves acted with the requisite discriminatory intent because

8 The district court di d dismiss Plaintiff Ontaneda’s Fifth Am endment equal protection claim, which Plaintiffs conceded could not proceed, post- Iqbal, based on a knowledge and acquiescence theory. Argueta II, JA-58 n. 7.
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“mere knowledge” of som eone else’s unl awful conduct is i nsufficient to state an equal protection claim. Id. at 1949. In contrast, for claim s that do not demand a showing of purposeful disc rimination – such as the Fourth Amendment claim s asserted here – governing Third Circui t law has not changed: a supervisor’s personal involvement, and thus liability, may still be pre mised on his or her “knowledge and acquiescence” in a patt ern of unlawful conduct by subordinates, see Baker v. Monroe Twp. , 50 F.3d 1186, 1190-91 (3d Cir. 1995), or upon t he supervisor’s promulgation or maintenance of a policy that produces a “unreasonable risk” of constit utional violations, see Sample v. Diecks , 885 F.2d 1099, 1118 (3d Cir. 1989 ). Numerous post -Iqbal cases confirm this basic proposition.
Second, Plaintiffs plead sufficient facts to “state a plausible claim” for relief against the Defendants and thus meet the pleading requirements of Federal Rule of Civil Procedure 8(a). Unlike Iqbal, who offered mere “formu laic recitation[s] of the elements of a constitutional discrim ination claim” that were thus not entitled to a presumption of truth, Iqbal, 129 S. Ct. at 1951 (i nternal citation and quotations omitted), Plaintiffs here provide specific, concrete factual allegations sufficient to support a “reasonable inference” that the Defendants were personally i nvolved in the violations pled. Specifi cally, Plaintiffs plead that Defen dants promulgated a policy that posed an unreasonable risk of constitutional harm and then acquiesced in a known pattern of constit utional violations by their subordi nates. Plaintiffs therefore push their claims far “across the line from con ceivable to plausible.” Id. (internal citation and quotations om itted). Moreover, contrary to Defendants’ suggestion, Iqbal did not overturn the basic operati ng system of the Federal Rules of Civil Procedure: Iqbal did not usher in a novel re gime of heightened pleading under Rule 8(a) requiring part icularized allegations; nor does Iqbal permit a court to disregard, at the pleading stage, alle gations supporting a reasonable inference of
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misconduct simply because there exists a com peting, plausibly innocent explanation for a de fendant’s conduct. See Fowler v. UMPC Shadysi de, 578 F.3d 203, 211-12 (3d Cir. 2009).
This Court does not have juri sdiction to review the district court’s finding of persona l jurisdiction over Myers and Torres. The Defendants effectively concede this ruling was interl ocutory and not immediately appealable under either 28 U.S.C. § 1292 or the l imited collateral order doctrine. They maintain instead that this Court can exercise jurisdiction over the personal jurisdiction issue, pendent to the properl y appealable qualifi ed immunity ruling, because there is “considerable overlap” between the two. Defs.’ Br. 2-3. Analytic or factual overlap, however, is insufficie nt to overcome the heavy presum ption against judicial expansions of the congr essionally mandated final judgment rule. Pendent jurisdiction is only a ppropriate where the two issues are “inextricably intertwined” – i.e., where the issues are “identi cal” or where decidi ng the nonappealable issue is logically necessary to resolve the properly appealable issue. E.I. Dupont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F. 3d 187, 203 (3d Cir. 2001). B ecause this Court can resolve the qualified immunity question without deci ding the personal jurisdiction questi on, the latter is not subject to appellate review.
Even if this Court were to reach out to decide the personal jurisdiction issue, however, the district court had am ple basis for exercising jurisdiction over Myers and Torres. Plainti ffs make numerous allegations demonstrating that Myers and Torres purposefully directed their law en forcement activities toward New Jersey, and continued to i mplement and monitor them there over a period of years. Accordingly, personal jurisdiction is ba sed on far more than the creation of a nationwide policy or a mere fa ilure to act. And, finally , jurisdictional discovery – not dismissal – is the appropr iate course if this Court determines that Plaintiffs’
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complaint, as currently pled, does not c ontain sufficient allegations to establish personal jurisdiction.
For these reasons, and others set fo rth more fully below, the district court’s decision should be affirmed.

ARGUMENT

I DEFENDANTS ARE NOT ENTITLE D TO QUALIFIED IMMUNITY

BECAUSE THE COMPLAINT PLAUSIBLY STATES A CLAI M

THAT THEIR OWN CONDUCT

VIOLATED PLAINTIFFS’

CLEARLY ESTABLISHED FOURTH AMENDMENT RIGHTS.

Defendants read Iqbal to foreclose the possibility of supervisory liability in any context by claiming that “a supervisor’s knowledge of, and acquiescence in, a subordinate’s wrongful conduct is not suffi cient to hold a supervisor liable in a Bivens action.” Def s.’ Br. 24; see also id. at 17.9 The Defen dants insist that, in order to defeat qualified imm unity, Plaintiffs must allege that the Defendants themselves “searched or seized . . . the plai ntiffs or participated in or planned” the unconstitutional home raids of Plaintiffs’ homes. See id. at 18. Under this extreme view, Iqbal worked a co mplete sea change in Bivens and Section 1983 and overruled, sub silentio, decades of precedent dating to Monell v. Dep't. of Social Serv's., 436 U.S. 658 (1978). In fact, Iqbal did no such t hing. See Dodds v . Richardson, 614 F.3d 1185 (10th Ci r. 2010) (rejecting this categorical reading of

9 As Defendants not e, in Bayer v. Monroe County Children and Youth Services, 577 F.3d 186, 191 n. 5 (3d Cir. 2009), thi s Court considered, but did not decide, whether Iqbal might have categorically elim inated “knowledge and acquiescence” as a basis for supervis ory liability. As desc ribed below, Iqbal cannot be read this broadly.
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Iqbal); Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (same), cert granted in part on other grounds, 79 U.S.L.W. 3062 (U.S. Oct. 18, 2010) (No. 10-98).10
In addition, Defendants take issue with a handful of Plaintiffs’ allegations on the grounds that they are insufficiently par ticularized and with a handful of others on the ground that t hey are not likely to be true. In so doing, Defendants seek to transform Iqbal’s “plausibility” pleading requirement into one that requires “heightened pleading” as well as an alle gation of likelihood “akin to probability” – standards that are fo reclosed by Rule 8 and Iqbal itself. Plaintiffs have stated a plausible claim for relief because the Co mplaint contains sufficient factual content to permit a “reasonable inference” that the Defendants set the unconstitutiona l conduct in motion and knew of and acquiesced in their subordinates’ wrongdoing.
A. Iqbal Did Not Alter the Longstanding Rule That Imposes Liability on Supervisors for Their K nowledge of and Acquiescence in the Unconstitutional Conduct of Su bordinates in the Fourth Amendment Context.
Contrary to the Def endants’ characterization, Iqbal says little of consequence to cases – like this one – that allege m isconduct that does not require proof of discrim inatory intent. First, Iqbal reiterated the longstandi ng principle that there can be no Bivens or Sect ion 1983 liability based on a theory of respondeat superior or vicarious liability – a fo rm of liability-without-fault based exclusively on supervisory position. See Iqbal, 129 S. Ct. at 1948. Thi s has been the law for decades, see, e.g., Monell, 436 U.S. at 691; Evancho, 423 F.3d at 353,
10 The Supreme Court granted certiorari in Al-Kidd on two questions unrelated to the Ninth Circuit’s holding about the standards governing supervisory liability. See Ashcroft v. Al-Kidd , Order Granting Certiorari, 79 U.S.L.W. 3062 (U.S. Oct. 18, 2010) (No. 10-98). As such, Al-Kidd’s analysis of the requirements for pleading supervisory liability post- Iqbal, see infra Point I. B., and its holdi ng regarding the absence of pendent appellate jurisdiction, see infra Point II, are final.
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as has been the corollary, that “each Govern ment official . . . is only liable for his or her own m isconduct,” Iqbal, 129 S. Ct. at 1949; see also Evancho, 423 F.3d a t 353-54 (describing “personal invol vement” requirement to establish supervisory liability).
This corollary principle – that a supervisor is liable for personal conduct that violates a constitutional duty to others – includes a duty of supervision. See Iqbal, 129 S. Ct. at 1941 (“[A] federal official ’s liability ‘will only result from his own neglect in not properly superint ending the discharge’ of his subordinates’ duties.”) (quoting Dunlop v. Munroe, 7 Cranch 242, 269 (1812)); see also Bd. of County Comm’rs of Bryan County v. Brown , 520 U.S. 397, 407 (1997) (Se ction 1983 liability where policymakers “were aware of, and acquiesced in, a pattern of constitutional violations”) (internal quotation om itted); Dodds, 614 F.3d at 1195 (explaining that a supervisor’s “persona l involvement is not lim ited solely to situations where a defendant violates a plaintiff’s rights by physically placing hands on him”) (internal quotation omitted).11
Iqbal also emphasized that, for purposes of ascertaining Bivens liability, the nature of a defendant’s duty “will vary with the constitutional provision at issue.” Iqbal, 129 S. Ct. at 1948.12 Iqbal sued Attorney General Ashcroft and FBI Director
11 Accordingly, when Iqbal reflected that “the term ‘supervisory liability’ is a misnomer,” it meant only to underscore the unavailability of claim s based exclusively on a “master-ser vant” relationship or “vicarious liability,” while simultaneously reiterating that every government official remains “liabl e for his or her own m isconduct.” 129 S. Ct. at 1949; see also Dodds, 614 F.3d at 1195 (“Respondeat superior liability im poses liability for public policy reasons upon masters though they are not at fault in a ny way, direct liability im poses liability where the plaintiff has shown the supervis or himself breached a duty to plaintiff which was the proximate cause of the injury.”) (internal quotation omitted). 12 See also id. at 1947 (“[W]e begin by taking no te of the elements a plaintiff must plead to state a cl aim”); id. at 1950 (viability of a cl aim against a supervisor is “context-specific”). This, too, is a long standing rule. In t he § 1983 context, the
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Mueller for racial discrim ination under the Fi fth Amendment and religious discrimination under the First Amendment. Id. In order to state a clai m for racial or religious discrimination, a plaintiff m ust plead that the relevant decision-m aker acted with an invidious purpose or intent. See Washington v. Davis, 426 U.S. 229, 239-40 (1976) (race discrim ination); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540 (1993) (religious discri mination); see also Iqbal, 129 S. Ct. at 1948-49 (explaining discriminatory state-of-mind requirement). The Iqbal Court concluded, therefore, that “a supervisor’s mere knowledge of hi s subordinate’s discriminatory purpose” doe s not dem onstrate that the supervisor himself acted with unconstitutional animus. Id. at 1949.13
This principle m akes obvious sense. Purposeful discri mination under Supreme Court pre cedent “requires more than ‘intent as volition or intent as an awareness of consequences .’” Id. at 1948 (quot ing Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)) (emphasis adde d). It thus foll ows that “mere knowledge” that someone else – even a subordi nate – is acting discrim inatorily does not demonstrate that a supervisor hi mself has the intent to discrim inate. See Iqbal, 129 S. Ct. at 1949 (“[P]u rpose rather than knowledge is required to im pose Bivens liability . . . for unconstitutional discrim ination . . . [on] an official ch arged with violations arising from his or her superintendent responsibilities.”); Dodds,
liability of a supervisor or municipality has always depended upon the nature of the constitutional violation alleged. See, e.g., 1 Sheldon Nahm od, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3:2 (2008). 13 There can be litt le doubt that th e Court’s holding w as limited to discrimination claims. The Court specifies no less than nine times that it is dealing with the particular elements of a discrimination claim, including the requirement of proof of i nvidious purpose or intent. See, e.g., Iqbal, 129 S. Ct. at 1942, 1944, 1948, 1949, 1951, 1952. Becaus e of this, Plaintiff Ontane da conceded below that his Equal Protection claim should be dismissed. Argueta II, JA-58.
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614 F.3d at 1210 (“[I] n a case like Iqbal, where the con stitutional violation
requires discriminatory intent, a supervisor does not cause the violation unless he or she actually intended for his or her subordinates to invidiously discriminate.”). 14
Unlike discrimination claims, Fourth Amendment claims have no intent
requirement. See Herring v. U.S., 129 S. Ct. 695, 703 (2009) (Fourth Am endment
“looks to an officer’s knowledge and expe rience . . . not his subjective intent”)
(internal citations om itted). Accordingly, Iqbal does not foreclose holding
supervisors liable for their own “knowle dge and acquiescence” in a pattern of
Fourth Amendment violations (and thus personal misconduct) or for other states of mind correlated with different substantive causes of action. 15 Compare Lopez v.
Beard, No. 08-3699, 2009 WL 1705674, at *3 n.1 (3d. Cir. June 18, 2009)
14 Contrary to Defendants’ suggestion, nothing in Iqbal requires that Plaintiffs allege that Defendants “participated in or planned” each of the unconstitutiona l home raids they ch allenge. Defs.’ Br. 18. If the Court ha d taken such an extraordinary departure from settled law, there would have been no need for the Court even to examine Iqbal’s allegations – Iqbal him self never remotely alleged that Ashcroft and Mueller were making ground-level, plaintiff-specific decisions in New York. See Dodds, 614 F.3d at 1199, 1195 (rejecting this reading of Iqbal). Moreover, courts have long found causation when a supervisor is a “moving force” behind the ultimate violation. See City of Canton v. Harris , 489 U.S. 378, 389 (1989); see also Bielevicz v. Dubinon , 915 F.2d 845, 850-51 (3d Cir. 1990) (describing causation requirement). 15 Put another way, because the touchstone of a Fourth Amendment violation is “objective unreasonableness,” see Graham v. Connor, 490 U.S. 386, 397 (1989), a supervisor can be held liable for “objectively unreasonable” conduct. See also Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability after Iqbal, 14 L EWIS & CLARK L. REV. 279, 297 (2010) (in light of Iqbal’s instruction to tailor liability standards to the appropriate state of m ind, supervisory liability is appropriate where a Fourth Amendment violation results from a “supervisor’s own objective unreasonablene ss”). Plaintiffs have alleged enough facts to satisfy a higher standard – kn owledge and acquiescence – and thus would also easily satisfy a standard that holds supervisors liable for their objectively unreasonable conduct.
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(applying Iqbal to analyze clai ms that supervisors intentionally discrim inated based on HIV+ status, but not ing different supervisory liability standards relevant to different causes of action), with Innis v. Wilson , No. 08-4909, 2009 W L 1608502, at *2-3 (3d. Cir. June 10, 2009) (applying t he longstanding “deliberate indifference” standard for supervisory liability claims under Eighth Amendment).16
Thus, the law in the Third Circuit re garding a supervisor’s liability for a pattern of Fourth Amendment violations remains the same as it was before Iqbal. A claim that a supervisor ha d “personal involvement” can be made through allegations of direct partic ipation in the harm or “ knowledge and acquiescence.” Baker, 50 F.3d at 1194; accord Robinson v. Pittsburgh , 120 F.3d 1286, 1294 (3d Cir. 1997) (“[O] ur cases have held th at ‘actual knowledge and acquiescence’ suffices for supervisory liability becaus e it can be equated with ‘personal direction’. . . .”); A.M. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004); Stoneking v. Bradford Area School Di st., 882 F. 2d 720, 729 (3d Cir.
16 Other Circuits have continued to recognize supervisory liability for nonintent based claims, applying their traditional, pre-Iqbal precedent. See Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2009) (“[S]upervising officer can be liable for an inferior officer’s constitutiona l violation onl y if he directly participated in the constitutional violation or if his failure to train or supervise the offending actor caused the deprivation.”) (internal quotation omitted); Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1 st Cir. 2009) (supervi sory liability where official “supervises, trains or hires a subordinate with deliber ate indifference toward the possibility that deficient performance of the task eventu ally may contribute to a civil rights deprivation”) (internal quotation om itted); Sandra v. Grindle, 599 F.3d 583, 590 (7th Cir. 2010) (deli berate indifference to violations of bodi ly integrity); Al-Kidd, 580 F.3d at 976 (Attorney General’s liability establis hed on basis of his “knowing failure to act in the light of even unauthorized abuses”); Dodds, 614 F.3d at 1211 (“a supervisor’s actual knowledge of his subordinates’ behavior will dem onstrate the requisite deliberate, intentional act by the supervisor to violate constitutiona l rights” sufficient to show personal involvement) (internal quotations omitted).
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1989). Though t he terminology is often m ixed,17 cases in this Circuit reveal that supervisory liability can be shown in at least two ways relevant here.
First, liability attaches where a superv isor implements a policy or practice that carries with it an “unreasonable risk” of constit utional violation by a subordinate, and the superv isor’s failure to change policy or em ploy corrective supervisory practices was a cause of the subordinate’s misconduct. See Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001); Sample, 885 F.2d at 1117 (individual supervisory liabili ty appropriate where supervisor’s pol icy decisions are “moving force behind” subordi nate’s constitutional tort); Bryan County, 520 U.S. at 409 (“[A] violation of federa l rights may be a highly predictable consequence of a failure to equip law en forcement officers with specific tools to handle recurring situations”); City of Canton, 489 U.S. at 390 n.10.18 This standard is consonant with the approach taken by the 10th Circuit in Dodds, 614 F.3d at 1199, which held that, post- Iqbal, a supervisor may be held liable if he or she “promulgated, created, implemented or possessed responsibility for the continued operation of a policy” that “caused the complained of constitutional harm,” as long as a plaintiff also demonstrates that the s upervisor acted with the requisite state of

17 For example, some cases place both of the following theories of supervisory liability under the “knowledge and acquiescence” classification.

18 As Judge Greenaway recently e xplained, supervisory liability post-Iqbal

may be shown where “the risk of constit utionally cognizable harm was so great

and so obvious that the risk a nd the failure of supervisory officials to respond”

contributed to the harm. Hagan v. Rogers, No. 06-4491, 2009 WL 1851039, at *5

(D.N.J. June 24, 2009); accord Hernandez v. Keane , 341 F.3d 137, 145 (2d Cir.

2003) (a supervisor is liable based on “creation of a policy or custom

that

sanctioned conduct amounting to constitutional violation, or allowing such a policy or custom to continue”); Zatler v. Wainwright, 802 F.2d 397, 401 (11 th Cir. 1986)

(“An official may al so be liable where a policy or custom that he established or

utilized results in deliberate indifference to an inmate’s constitutional rights”).

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mind for the underlying constitutional violation – which in the Fourth Amendment context is objective unreasonableness.
Second, supervisory liability may be imposed where “a supe rvisor tolerated past or ongoing m isbehavior.” Baker, 50 F.3d at 1191 n.3 (citing Stoneking 882 F.2d at 724-25); accord Sample, 885 F.2d at 1118 (“evidence that such harm has in fact occurred on numerous occasions”); Carter v. City of Philadelphi a, 181 F.3d 339, 357 (3d Cir. 1999) (same); Montgomery v. DeSimone, 159 F.3d 120, 127 (3d Cir. 1998) (“contemporaneous knowledge of the offendi ng incident or knowledge of a prior pattern of sim ilar incidents”); Bielevicz, 915 F.2d at 851 (“policymakers were aware of sim ilar unlawful conduct in the past, but failed to take precautions against future violations, and . . . this fa ilure, at least in part, led to [plaintiff’s] injury”).
In sum, supervisors have a duty to prevent an “unreasonable risk” that constitutional violations will arise from their own policies and to take corrective action when they learn of a pattern of subordinates’ misconduct. A failure to satisfy these duties violates the Fourth Amendment. See Robinson, 120 F.3d at 1294; see also Bryan County , 520 U.S. at 407 (policymakers’ “continued adherence to an approach tha t they kno w or should know has failed to prevent tortious conduct by em ployees may establish t he conscious disregard for the consequences of their action” to support liability under § 1983).
Significantly, this Circuit broadly co nstrues the duty of supervision in evaluating a supervisor’s liability:
We think the rubric ‘superv ision’ entails, among other things, training, defining e xpected performance by promulgating rules or otherwise, monitoring adherence to performance standards, and responding to unaccep table performance whether through individualized discipline or further rulemaking.
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Sample, 885 F.2d a t 1116; see also Bielevicz , 915 F.2d at 851 (cha racterizing broadly the violation of supervisor’s duty as “fail[ing] to take precautions against future violations” or a “failure to act once . . . on notice”); Al-Kidd, 580 F.3d at 976 (“knowing failure to act” supported liability against Attorney General Ashcroft). Accordingly, liability for inadequate supervision – i.e., acquiescence – can be imposed for failing to modify a policy or “r espond appropriately” in the face of an ongoing pattern of c onstitutional injuries, see Sample, 885 F. 2d at 1118, or for a “failure to train, discipline, or control,” Montgomery, 159 F.3d at 127. It is also commonly shown by a failure to im plement or enhance police training. See Bryan County, 520 U.S. at 407 (“If a program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for”); Carter, 181 F.3d at 357 (“[I]f the police often violate rights, a need for further training might be obvious”).19
19 Ignoring the plethora of case la w articulating the knowledge and acquiescence standard in this Circu it, Defendants rely exclusively on Rode v. Dellarciprete, 845 F.2d 1195 (1988). In Rode, allegations t hat the Governor of Pennsylvania knew of a low-level state employee’s wrongful termination, based on news reports about her immediate superv isor’s conduct and grievances she filed with state agencies, were deemed in sufficient to meet the “know ledge and acquiescence” standard. Id. at 1208. First, unli ke the governor of Pennsylvania in Rode, the Defendants here were the persons directl y responsible for the program challenged and thus it is far m ore reasonable to infer t heir knowledge of wrongdoing. See Argueta II , JA-59. Second, unlike the long-term pattern of misconduct alleged here, R ode attempted to im pute knowledge about a single incident. Compare Bryan County, 520 U.S. at 408 (“B ecause the decision necessarily governs a single case, ther e can be no notice to the m unicipal decisionmaker based on previous vi olations of fede rally protected rights that his approach is inadequate . . . .”). Finally, Plaintiffs here allege that many di fferent sources put the Defendants on notice of widespread constitutional violations. See infra Point I.B.
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The Defendants state, but do not explain, that a “failure to train claim” is only pertinent to “entity liability” unde r Section 1983, but not to individualcapacity liability under Bivens. Defs.’ Br. 30-31. This is incorrect. First, as Iqbal itself makes clear, the standa rds governing liability under Bivens and § 1983 are analogous. Iqbal, 129 S. Ct. at 1948. See Chinchello v. Fenton, 805 F.2d 126, 134 (3d Cir. 1986) (appl ying Section 1983 cases in evaluating Bivens claim for failure to train, supervise, and discipline subordinates). Second, “entity liability” – i.e., municipal liability – is sim ilar to indi vidual supervisory liability under Section 1983. Baker, 50 F.3d at 1191; Sample, 885 F.2d at 1118. Th erefore, individual supervisors can be held liable unde r Section 1983 – and, acco rdingly, Bivens – for their own failure to supervise or train. Carter, 181 F.3d at 358 (polic ymakers in District Attorney’s Office may be held i ndividually liable for failure to train in light of pattern of unconstitutional conduct by police).20
Defendants also argue that, because Iqbal rejected a theory of liability for supervisors who allegedly enacted an unconstitutional policy, the case for supervisory liability is “even weaker” here because Plai ntiffs do not allege that the challenged policies were unc onstitutional as written. Defs.’ Br. 26. First, Defendants’ premise is flawed. Iqbal did not hold categorically that supervisors
20 Indeed, in Connick v. Thompson, No. 09-571, before the Supreme Court this term, the parties – and, implicitly, the Court – agree that a District Attorney can be held individually liable as a supervisor for a failure to train subordinates about their Brady obligations where the supervisor knew or should have known of an underlying pattern or practice of Brady violations; the only question in c ontention is whether the risk of harm from a failure to train in that case triggers liability for a single constitutional violation. See Connick v. Thompson , 130 S. Ct. 1880 (2010) (granting cert to address question of whether “imposing failure-to-train liability on a district attorney’s office for a single Brady violation” satisfies City of Canton standards); Br. of Ptrs., 2010 WL 2354753, at *21-23 (conceding indivi dual supervisor liability for fa ilure-to-train in face of history of subordinate wrongdoing).
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are entitled to qualified immunity even when they devise unconstitutional policies; it held that the plaintiff failed plausibly to allege that the supervisors possessed the required discriminatory intent to render their actions unconstitutional in the first place. More funda mentally, as the fore going analysis dem onstrates, supervisory liability has never requi red proof that the supervisor enacted ex ante a policy t hat violated the constitution. It is enough, at least in the Fourth Amendment context, that a supervisory defendant prom ulgates a policy that produces an unreasonable risk of constitutional violations or lear ns of, and ignores, ong oing and widespread violations by subordinates.21
B. Plaintiffs Allege Sufficient Facts To Plausibly State a Claim Against Defendants for Their Know ledge of and Acquiescence in a Pattern of Unconstitutional Conduct.
To evaluate the sufficiency of a co mplaint at the m otion-to-dismiss stage, a court may, first, disregard pure “legal conc lusions” or “t hreadbare recitals of the elements of a cause of action.” Fowler, 578 F.3d at 210-11 (quoting Iqbal, 129 S. Ct. at 1949). Second, the court m ust determine whether the com plaint has “sufficient factual allegations” to st ate a “plausible cl aim for relief.” Id. at 211. See generally Adam Steinman , The Pleading Problem , 62 S TAN. L. REV. 1293, 1307-1309 (2010) (explaining Iqbal’s two-step approach). Plausibility “is not akin to a probability requirem ent.” Iqbal, 129 S. Ct. at 1949. Rather, the court m ust “accept all factual allegations as true, construe the co mplaint in the light m ost favorable to the plaintiff, and determ ine whether, under any reasonable reading of the complaint,” Fowler, 578 F.3d at 210 (quot ing Phillips v. County of Allegheny ,
21 Under the logic of t he analogous Section 1983 cases, an otherwise lawful policy can become unconstitutional when it is im plemented in an unconstitutiona l manner – liability for the uncons titutional policy or custom is thus attributed to the supervisor where h e tolerates its unlawful im plementation. See City of Canton, 489 U.S. at 387-88.
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515 F.3d 224, 233 (3d Cir. 2008)), the court is able to “draw the reasonable inference that the defendant is liable for the m isconduct alleged,” id. (quoting Iqbal, 129 S. Ct. at 1948).
Thus, in Iqbal, liability against Ashcroft a nd Mueller depended upon proof that each acted “because of” re ligious or ethnic animus. Iqbal, 129 S. Ct. at 1948. Iqbal did allege that Ashcro ft and Mueller adopted a po licy of housing 9/11 “hi gh interest” detainees like him in harsh cond itions “on account of his religion, race and/or national origi n.” But the Court disregarded such “naked asser tions” of liability – without further fa ctual content substantiating the officials’ alleged discriminatory purpose – because they am ounted to nothing m ore than “a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Id. at 1951 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Iqbal failed to “show, or even intimate that petitioners purposefull y housed detainees in [harsh conditions] due to their race, religion, or national origin.” Id. at 1952 (emphasis added); see also id. at 1952 (Iqbal’s com plaint “does not contain any factual allegation sufficient to plausibly s uggest petitioners’ discriminatory state of mind”).22
Here, Plaintiffs do not merely a ssert Defendants’ knowledge and acquiescence, nor do they offer a “form ulaic recitation” of the standard of a
22 Disregarding “threadbare” and “formulaic” legal conclusions, the only wellpled factual allegations remaining in the complaint were that Ashcroft and Mueller, respectively, acted as the “principal ar chitect” and an “instrumental ” force in adopting a policy that caused “high interest” detainees following 9/11 to be housed in harsh, segregated conditi ons while awaiting trial on duly lodged crim inal charges. Id. As between the “obvious alternative explanation” for the arrests – i.e. a nondiscriminatory intent to detain illegally present aliens for valid law enforcement purposes – and the “purposefu l, invidious di scrimination respondent asks us to infer,” the Iqbal court concluded that t he latter was “not a plausibl e conclusion.” Id. at 1951-52.
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supervisor’s liability for a pattern of Four th Amendment violations. Rather, they offer sufficient “factual content” to create a plausible inference that the Defendants failed in their constitutional duty under still-governing Third Circuit case law.
First, the Co mplaint alleges facts th at would permit a reasonable inference that the Defendants adopted and m aintained a policy that produced an “unreasonable risk” of constit utional violation and was a “moving forc e” behind Plaintiffs’ injuries. Plaintiffs allege:
• Myers and Torres were responsible for devisi ng and im plementing relevant portions of Operation Ret urn to Sender, JA-561 (SAC ¶144), and that Weber and Rodriguez were responsible for carrying out that policy in New Jersey, JA-563-64 (SAC ¶149).
• Myers and Torres doubled t he number of FOTs operating in New Jersey, JA-537 (SAC ¶29) and or dered each FOT “to arrest 1,000 fugitive aliens per year” – a “quo ta” that “represented an 800% increase on the previous quota.” JA-538 (SAC ¶30); see also JA-561 (SAC ¶144) (Myers and Torres fa iled to provi de “the necessary training to prevent ICE agents – faced with these new pressures – from acting abusively and unlawfully”).
• Public record documents disclo sed after the filing of the initial complaint confirm the plausibility of allegations that My ers’ and Torres’ policy decisions were a cause of the unconstit utional and abusive searches of Plaintiffs’ hom es. Specifically, the January 2006 and September 2006 Torres Mem os, among other relevant facts, confirm that Myers and Torres increased the FOT annual arrest quotas by 800% and, critically, permitted the arrest of “c ollaterals” – i.e., non-criminals without out standing deportation orders that the police encounter incidentally – to count toward this quota.
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• Plaintiffs allege that Operati on Return to Sender “facilitated the creation of a culture of lawl essness” among FOTs, JA-561 (SAC ¶144), in which raids we re treated as a “ fun time!” or as “play!!” and where FOTs used deceit, intim idation, and force in pursuit of collateral apprehensions. JA-539-41 (SAC ¶¶36-37).
• Plaintiffs identify c ommon unlawful and abusive features of the statewide raids, JA-538-39 (SAC ¶¶33-35) (unlawful entries); JA544-58 (SAC ¶¶49-139) (abuse, intim idation, and threats); JA-540-41 (SAC ¶¶38-42) (unlawful seizures).
• Plaintiffs allege they were not the identified targets of a plan ned raid. Indeed, most were either U.S. citizens or otherwise lawfully present when they were raided. JA-544-48 (SAC ¶¶49-139).
In noting that each of the raids fol lowed a “strikingl y similar” pattern, Argueta I, JA-3, the district court underscored th e plausibility of an inference that the violations emanated from a contributi ng cause: the decisions of the supervisors who constituted a comm on denominator behind illegal raids in New Jersey an d throughout the country. It is thus eminently reasonable to infer in this case that the Fugitive Operations policies Myers and Torres devised, and Weber and Rodriguez implemented, created an unreasonable risk of harm and were otherwise a “moving force” behind the Fourth Amendment violations alleged.
Second, Plaintiffs do not merely allege knowledge in a conclusory manner, but instead make ample allegations to s how that Defendants were on notice of t he pattern of misconduct and encouraged it. Plaintiffs alle ge Defendants were put on notice about the pattern because:
• Myers and Torres “have been s ued numerous times for their roles in these practices.” JA-561 (SAC ¶145) (l isting lawsuits nam ing them
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individually); see also JA-559 (SAC ¶140) (additional lawsuits putting them on notice). • “Reports [in the m edia] of ICE raids – and their often concomitant abuses – have been particularly prev alent in the state of New Jersey.” JA-540, 559-61 (SAC ¶¶41, 143) (citing numerous regional and national news reports). 23 Even the Special Ra pporteur of the United Nations issued a report critical of the searches and abuses conducted by FOTs. JA-559 (SAC ¶142). • A June 2007 letter from a Congressional delegation to the Department of Homeland Security criticized New Haven raids in which ICE agents “pushed their way into hom es” and “treated both adults and children inappropriately.” A contem poraneous letter from the National Immigration Forum expressed similar alarm. JA-559, 562 (SAC ¶¶141,146). Myers responded to the latter, reasoning that, in the face of persistent com plaints about nonconsensual hom e-entries, consent to sear ch was assured mer ely by the presence of a Spanishspeaking officer. JA-314. • ICE raids were also criticized at a House subc ommittee meeting, prompting a response from ICE. JA-543. • New Jersey Senator Robert Mene ndez specifically directed strong criticism of New Jersey raids to Myers who, according to Senator Menendez, disregarded it. JA-441.
23 The district court specifically conc luded that “ba sed on my government experience and common sense, each [Supervisory Defendant] most likely received and read news clips regularly, including those cited in the Complaint.” Argueta II, JA-62.
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• In 2007, Homeland Security’s Office of the Inspector General publicly criticized ICE for its inco mplete and inaccurate background information, understaffing, and i ncomplete training.” JA-543-44 (SAC ¶47); id. (SAC ¶47(a)-(d)); JA-241.
Allegations regarding De fendants’ acquiescence or failure to supervise include:
• Defendants failed to conduct meaningful investigations into the practices or to provi de any specific guidelines or training to FOTs to ensure that hom e entries and s earches were conducted within constitutional limits. JA-562-64 (S AC ¶¶148, 152). Nor did Myers and Torres respond to the pressure from media and public officials by either reducing the 1000-FOT arrest quota or altering the incentives to seek collaterals via dragnet raids in order to satisfy that quota.
• Defendants “contributed to such unlawful conduct by continuing t o publicize, and laud as ‘suc cessful,’ their department’s dramatic increase in immigration arrests over the past two years, as reflect ed in boastful press releases touting IC E’s accomplishments.” JA-562-63 (SAC ¶148) (citing num erous Newark Field Office Press Releases in 2006 and 2007). One such press re lease described operations during the two-week window when Plaintiff Covias’ home was raided.
• Weber and Rodriguez made “fre quent reports and comments on the number of arrests made by ICE agen ts, and [spoke] publicly on behalf of ICE about the im plementation of ‘Operation Return to Sender’” in New Jersey. JA-563 (SAC ¶149). Weber brushed off specific criticism about home raids in New Jersey, by stating, “I don’t see it as storming a home . . . . I see it as trying t o locate someone.” JA-56364 (SAC ¶149).
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These facts permit a reasonable infere nce that Def endants acquiesced to a known pattern of Fourth Amendment violations by subordinates. As Judge Becker has explained, “it i s logical to assume that continued official tolerance of repeated misconduct facilitates similar unlawful actions in the future.” Bielevicz, 915 F.2d at 851;24 see also Andrews v. City of Philadelphi a, 895 F.2d 1469, 1479 (3d Cir. 1990) (jury could reasonably conclude th at frequent allega tions of sexual harassment and a “failure to investigate the source of the probl em” could “implicitly encourage[] squad members to continue in their abuse of” plaintiff). As such, Plaintiffs pushed their clai m far “across the line from conceivable to plausible,” Iqbal, 129 S. Ct. at 1951, and thus satisfy Rule 8’s pleading requirements. See Fowler, 578 F.3d at 212 (under “p lausibility paradigm” Plaintiffs need only allege specific facts to “give [defendant] notice of the basis for [their] claim”).
These allegations surpass those in Al-Kidd, 580 F.3d at 976, which the Ninth Circuit found sufficient to plausibl y allege Attorney General Ashcroft’s supervisory liability fo r his “knowing fa ilure to act” in the face of abuses of the material witness detention pr ocess. There, as here, subordinates’ abuses “were highly publicized in the m edia, congressional testimony and correspondence.” Id. The Court found that these sources of inform ation “could have given Ashcroft sufficient notice to require affirmative acts to supervise and correct the actions of
24 Because it is “logical” to assume that acquiescence “facilitates” future unlawful conduct, it is a fortiori “plausible” to infer that the Defendants’ acquiescence in a known pattern of constitu tional violations contributed to the harm to these individual Plaintiffs. Th e question of “moving force” causation is for the jury and need not be alle ged in detail in the pleadings. See Bielevicz, 915 F.2d at 851 (“[A] s long as t he causal link is not too tenuous, the questi on whether the municipal policy or custom proximately caused the constitutional infringem ent should be left to the jury.”); Jett v. Dallas Independent Sch. Dist ., 491 U.S. 701, 737 (1989) (same).
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his subordinates.” Id. (emphasis added); see also id . (finding it “reasonable to believe” that an OIG report that “discusse d abuses and improprieties that occurred in a related context” would have put Ashcroft on notice). In contrast, there is no need to infer from the Complaint in this case that the Defendants m ust or should have known of the violations: Plaintiffs plead facts showing that these Defendant s had actual notice of the precise type of constitutional violation – in New Jersey and elsewhere – that Plaintiffs describe in their Complaint.
In addition to qui bbling with the suffic iency of isolated allegations i n the complaint, but see Chabal v. Reagan, 822 F.2d 349, 358 (3d Cir. 1987) (com plaint must be r ead as a whole), De fendants attempt to read into Iqbal’s plausibility requirement a transformation of the l ogic of the Federal Rul es of Civil Procedure. First, Defendants demand that particular a llegations be supported with additional, specific details. Defs.’ Br. 30 (demanding that Plaintiffs “identify the specific training that was warranted” or “identi fy any discipline or inve stigation that was required”). The Supreme Court has rep eatedly rejected such a “heightened pleading standard” as inconsist ent with Rule 8. Leatherman v. Tarrant County Narcotics Intel. and Coord. Unit , 507 U.S. 163, 168 (1993) (contrary to the “specificity requirement of Rule 9(b),” the “liberal notice pl eading” embraced by Rule 8(a)(2) applies to municipal liability claims); Erikson v. Pardus, 551 U.S. 81, 93 (2007) (unanimous opi nion) (“Specific facts are not necessary.”) (citing Twombly, 550 U.S. at 555).
Iqbal decidedly does not require, as Defendants seem to believe, that each individual allegation contain specific details that confirm its plausibility; rather, Iqbal requires factual allegations that, accepted as true, state a plausible claim of misconduct. Twombly, 550 U.S. at 570 (“[W] e do not require heightened fact pleading of specifi cs, but only enough f acts to state a clai m to relief that is plausible on its face.”); accord Fowler, 578 F.3d at 211-12 (“Although Fowler’s
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complaint is not as rich with detail as some might prefer, it need onl y set forth sufficient facts to support plausible claims.”). The Third Circuit has instructed that failure-to-supervise allegations need not be pl ed with t he detail Defendants demand. See Sample, 885 F.2d at 1116-17 (“For th e purpose of defining the standard for liabil ity of a supervisor under § 1983, the characterization of a particular aspect of supe rvision is unim portant.”); see Carter, 181 F. 3d at 358 (plaintiff “surmises, reasonably that [police] misconduct reflects inadequate training and supervision. He cannot be expected to know, without discovery, exactly what training policies were in place or how they were adopted”).
Second, Defendants appear to disagree w ith inferences Plaintiffs make from the allegations, Defs.’ Br. 34, and suggest that if allegations are simply “consistent with lawful conduct” the com plaint is deficient, Defs.’ Br. 33. Defendants would thus import into R ule 8 Plaintiffs’ ultimate burden to prove liability by a preponderance of the evidence. Yet Iqbal expressly instructs that pleading “plausibility” does not require demonstrating a claim is probable. Iqbal, 129 S. Ct. at 1949; Phillips, 515 F.3d at 234. As such, the “plausibil ity” standard does not permit a court t o choose which of t he competing inferences is m ore likely to be true. See Fowler, 578 F.3d at 212 (an “evident iary standard is not a proper measure of whether a co mplaint fails to state a cl aim. . . . [S]tandards of pleading are not the same as standards of proof” (internal citations and quotations omitted)).
Instead, all Plainti ffs must do is “give enough details about the subject matter of the case to present a story that holds together. . . . The court will a sk itself could these things have happened, not did they ha ppen.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010); see also id. (under Rule 8 courts should not “stack up inferences side by si de and allow the case to go forward only if the plaintiff’s infe rences seem more compelling than the opposi ng inferences.”) (citations omitted); Fowler, 578 F.3d at 212 (“[W]ell-pled complaint may proceed
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even if it strikes a savvy judge that actual proof of those facts alleged is improbable and that a recovery is very rem ote and unlikely.” (internal quotations om itted)).25 This is because the logic of the Federal Rules still pres umes that establishing a claim as more-likely-than-not requires discovery. See Twombly, 550 U.S. at 1959 (complaint must state “enough facts to raise a reasonable expectation that discovery will reveal evidence of” the necessary elements of the claim ); Phillips, 515 F.3d at 234 (same).
Finally, consistent with their view that Iqbal eliminated all possibility of supervisory liability, Defendants argue that Myers should be entitled to the same qualified immunity that Ashcroft receive d, because of their analogously high positions in the federal bureaucracy. See Defs.’ Br. 32 (noting that Myers, like Ashcroft, is subject to Senate confirmation and supervised many employees). This widely misses the point. As already de scribed, Ashcroft was entitled to qualified immunity not by virtue of his high posi tion, but because Iqbal im plausibly pled Ashcroft’s discriminatory animus. See Iqbal, 129 S. Ct. at 1949; compare Al-Kidd, 580 F.3d at 977 (allegations against Ashcroft sufficient to state claim for liabili ty under Fourth Amendment). In contrast, Plai ntiffs’ allegations plausibly show that Myers had the personal involvement necessary to sustain a claim that she violated the Fourth Amendment.
Moreover, Ashcroft and Myers are, in fact, di fferently situated. Unlike Ashcroft, who was at “the highes t level of the fede ral law enforcement hierarchy,” Iqbal, 129 S. C t. at 1943, Myers and Torres directly set and
25 Defendants’ suggestion that courts m ust ignore allegations if they are based “upon information and belief,” Defs.’ Br. 35-36, is also i ncorrect. See Arista Records v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (p lausibility standard does not preclude pleading “upon information and belie f” where facts are peculiarly within the possession and control of defendant).
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maintained, while Weber an d Rodriguez implemented, the policy and practices at

issue here; they “worked on the se issues every day,” “had sufficient knowledge of

how the searches were being conducted,” and “wrote the polic y, implemented it

and monitored its progress.” Argueta II, JA-60. Signi ficantly, Plaintiffs did not

sue Ashcroft or Homeland Security Direct or Chertoff because they did not possess

comparable evidence of personal involvement.

Nor can the Defendants here rely on a state of emergency to justi fy their

actions and defaults. Iqbal stressed that Ashcroft and Mueller were forced to make

quick, discretionary policy decisions during “a national and international security

emergency unprecedented in the history of the American Republic.” See 129 S.

Ct. at 1945, 1953 (i nternal quotations omitted); see also Chao v. Ballista , 630 F.

Supp. 2d 170, 177 (D. Mass. 2009) (“Ever-present in th e majority’s opinion was

the fact t hat these high-ranking offic ials faced an unprecedented attack o n

American soil.”). By contrast, De

fendants set and maintained their

unconstitutional policies over a course of years, with ample time to evaluate and

remedy the widespread constitutional violati ons of which they were aware. This

factual distinction affects the scope of a gove rnment official’s legal obligation. As

the Supreme Court has explained, when “unforeseen circu mstances demand [an

officer’s] instant judgment,” the courts s hould be more hesitant to conclude their

actions or omissions were unlawful. County of Sacramento v. Lewis, 523 U.S. 833,

853-54 (1998). By contrast, where, as here, government officials have “tim e to

make unhurried judgments,” and “extende d opportunities to do better are teamed

with protracted failure even to care, indifference [to the rights of individuals] is

truly shocking.” Id.

To grant the qualified imm unity on the broad grounds De fendants propose,

especially at the motion-to-dismiss stage, would effectively immunize supervisors’

reckless disregard for constitutional ri ghts, no matter how outrageous and

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widespread the behavior of t heir subordinates or how frequently supervisors were put on notice of it. Qualified imm unity, while intended to protect government officials from being unduly cautious in carrying out their responsibilities – especially during emergencies, see Iqbal, 129 S.Ct. at 1953 – is not designed to permit them to act “wholly free from c oncern for [their] personal liability.” Mitchell v. Forsyth , 472 U.S. 511, 524 (1985). Indeed, such officials “m ay on occasion have to pause to consider whet her a proposed course of action can be squared with the Constitution and laws of the United States.” Id.

II THIS COURT LACKS APPELLATE JURIS DICTION TO REVI EW

THE DISTRICT COURT’S FINDING OF PERSONA

L

JURISDICTION.26

As Defendants Myers and Torres effec tively concede, the interlocut ory ruling finding personal jurisdiction over them is not immediately appealable under the limited circumstances set forth in 28 U.S.C. §1292(a). Nor is that ruling part of the “small class” of decisions narrowly classified as “collateral orders” (such as the denial of qualified immun ity) that, “although they do no t end the litigation, m ust nonetheless be considered ‘final’” and are therefore subject to immediate appellate review. Swint v. Chambers County Comm’n, 514 U.S. 35, 42 (1995) (citing Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949)); Iqbal, 129 S. Ct. at 1945 (2009). By contrast, an i nterlocutory decision on personal jurisdi ction “can be reviewed effectively on appeal fro m final judgm ent,” and thus is not immediately appealable. Rein v. Socialist People’s Libyan Arab Jamahiriya , 162 F.3d 748, 756 (2d Cir. 1998); see also Abi Jaoudi & Azar Trading Corp. v. Cigna

26 For a fuller discussion of Plaintiffs ’ position on this Court’s lack of jurisdiction, Plaintiffs respectfully refer the Court to Plaintiff-Appellees’ Response to the February 25, 2010, Court Order Regarding Appellate Jurisdiction, March 22, 2010.
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Worldwide Ins. Co. , Nos. 09-1297, 09-1298, 2010 WL 3279173, at *7 (3d Cir. Aug, 20, 2010) (same).
Myers and Torres instead claim – but do not seriously argue – that this Court may assert appellate jurisdiction pendent to the qualified immunity appeal properly on review pursuant to Iqbal. Defs.’ Br. 2-3. But the category of judicially created “pendent appellate jurisdiction” is narrow and inflexible, as it underm ines Congress’s intent to confer on district courts t he “first line discretion to all ow interlocutory appeals” and usurps the ru le-making authority Congress has granted the Supreme Court over federal appellate jurisdiction. Swint, 514 U.S. at 47-48.
Accordingly, this C ourt has held th at it will assert pendent appellate jurisdiction only in the circu mstances the Supreme Court identified in Swint, i.e., when a nonappealable order is “inextricably intertwined” with an appealable one or when review of a nonappealable order is “necessary to ensure meaningful review” of an appealable one. Dupont, 269 F. 3d at 203; see also Rein, 162 F.3d at 757-58 (same). These two factors frequently meld into a single inquiry. For example, this Court has found inadequate indicia of “interrelatedness” to support pendent jurisdiction where “the issue of personal j urisdiction does not have to be reviewed to exercise meaningful review of the i mmediately appealable arbitration issue.” Dupont, 269 F.3d at 205; see also Rein , 162 F.3d at 758 (holding t hat the two factors amount to “essentially the same thing”).
Though Myers and Torres correctly cite the “inextricably intertwi ned” standard, they effectively concede they fall short by asserting m erely that the personal jurisdiction and qualif ied immunity issues “overlap[] considerably.” Defs.’ Br. 2-3. Factual or conceptual ove rlap is insufficient to confer pendent jurisdiction. Rather, the “inextricably intertwined” standard requires that the “basis of the personal jurisdiction decision [be] identical to the basis for the immediately appealable order.” Dupont, 269 F.3d at 203 (em phasis added); see
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also Rein, 162 F.3d at 760-61 (explaining that subject matter jurisdiction under Foreign Sovereign Immunities Act is “inextricably inte rtwined” and “essentially identical” to personal jurisd iction because district cour t could not have found one “without saying everything that was required to answer” the other).27
In Al-Kidd, the Ninth Circuit faced the same question presented here. After acknowledging analytic overlap between the “personal involve ment” prong of the qualified immunity inquiry and the “purpose ful[] direct[ion] [of] activities toward the state” prong of the personal juri sdiction analysis, the court held the interrelationship too weak to support pe ndent appellate jurisdiction. 580 F.3d at 980. Because other elements of personal jurisdi ction – including whether the defendant directed his acts at the forum st ate or knew they were likel y to cause harm there – were “irreleva nt to any element of . . . qualified imm unity,” the overlap was not com plete enough to render the qualifie d immunity and personal jurisdiction analyses effectively identical. Id. The Ninth Circuit therefore declined to arrogate to itself “the general power to review district courts’ exercise of personal jurisdiction before a final judgment.” Id.28 Likewise here, pendent jurisdiction is unavailable because the C ourt can resolve the qualified imm unity
27 Because interlocutory appeals of temporary injunctions necessarily involve resolution of the personal jurisdiction que stion in the course of assessing the appellant’s likelihood of success on the mer its, that is a lim ited circumstance in which pendent appellate jurisdiction is appropriate. Dupont, 269 F.3d at 205 n.9. 28 In Iqbal v. Hasty, the Second Circuit asserted pendent appellate jurisdiction over a personal jurisdiction determ ination when reviewing qualified imm unity, based solely on “substantial factual overl ap on the issues raised.” 490 F.3d 143, 177 (2d Cir. 2007) (internal quotation om itted), rev’d on other grounds sub nom . Ashcroft v. Iqbal , 129 S.Ct. 1937 (2009). This deci sion is inconsistent with the Supreme Court’s decision in Swint, 514 U.S. at 51, this Circuit’s preced ent, Dupont, 269 F.3d at 204, and the Second Circuit’s own case law, Rein, 162 F.3d at 759 (declining pendent jurisdi ction of over lapping issue of personal j urisdiction because its consideration was not necessary for review of the appealable issue).
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issue without having to decide whethe r Myers and Torres ha d sufficient minimum

contacts with New Jersey.

The Supreme Court has recentl y instructed courts of appeals to maintain “a

healthy respect for the virtues of the final-judgment rule” because “[p]er mitting

piecemeal, prejudgment appeals . . . underm ines efficient judicial adm inistration

and encroaches upon the prerogatives of dist rict court judges, who play a special

role in managing ongoing litigation.” Mohawk Industries, Inc. v. Carpenter, 130

S.Ct. 599, 605 (2009) (interna l quotations omitted). Expanding the category of

pendent appellate jurisdic tion would i mproperly “encourage parties to parlay

Cohen-type collateral orders into m ulti-issue interlocutory appeal tick ets,” Swint,

514 U.S. at 49-50, resulting in both considerable cost and uncertainty, cf. Hertz

Corp. v. Friend , 130 S. Ct. 1181, 1193 (2010) (“[C]ourts benefit from

straightforward rules under which they can readily assure them selves of their

power to hear a case” as “[s

]imple jurisdictional rules promote greater

predictability.”). Any expansion of the c ourts of appeals’ jurisdiction – and the

corresponding balancing of judicial resources – should com e from Congress or the

duly authorized rulemaking process, not case-by-case adjudication, as the

Defendants propose. Swint, 514 U.S. at 48.

III THE COURT SHOULD NOT REVE RSE THE DIS TRICT COURT’S FINDING OF PERSONAL JURISDICTION.

Even if this Court elects to rev iew the district court’s interlocutory personal jurisdiction order, it should not reverse it on the merits. First, a plenary review of the allegations and other relevant evidence demonstrates that Plaintiffs have met the minimal burden required for establishi ng personal jurisdiction over Myers and Torres. Second, if t he allegations or other record evid ence appears insufficient a t this motion-to-dismiss stage, the proper course would be to rem and so tha t

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Case: 10-1479 Document: 003110360423 Page: 52 Date Filed: 11/24/2010
Plaintiffs may pursue jurisdictional discovery, an opportunity denied to them under the district court’s May 18, 2010, stay of all discovery. ECF No. 170.
A. Defendants Myers and Torres Had Sufficient Contacts w ith New Jersey To Justify the Exercise of Personal Jurisdiction over Them.
In evaluating the appropriateness of specific, personal jurisdiction over Defendants, the court considers whether (1 ) the defendants “purposefully directed [their] activities” at the forum ; (2) the litigation “‘arise[s] out of or relate[s] to’ at least one of those activities;” and (3) th e exercise of jurisdiction otherwise “comport[s] with ‘fair play and substantial justice.’” O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007) (i nternal citations omitted). The test is designed to “ensure[] that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuit ous,’ or ‘attenuated’ contacts,” Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989) (i nternal citations omitted), but “reasonably anticipate[s] being haled into court t here,” World-Wide Volkswagen v. Woodson, 44 U.S. 286, 297 (1980).29
The allegations and documentary evidence in this case show that the policies and activities Plaintiffs challenge were directed specifically at New Jersey . Defendants are therefore wrong to contend that Plaintiffs base jurisdiction on
29 Myers and Torres have effectively con ceded personal jurisdiction in sim ilar cases brought agai nst them in several ot her jurisdictions a cross the country by failing to assert a lack of personal juri sdiction in their m otions to dism iss. See, e.g., Memorandum of Law in Support of Motion to Dismiss the Complaint Against Defendants Michael Chertoff, Julie M yers, John Torres, and Marcy Form an, Aguilar v. ICE , No. 07 Civ. 8224, Dkt . No. 221 (S.D.N.Y. March 29, 2010) (failing to raise lack of personal jurisdic tion as basis for dism issal in case with similar facts); Federal Defendants’ Memo randum in Support of Motion to Dism iss or Alternatively for Summary Judgm ent, Arias v. ICE , No. 07-1959, 2009 WL 2628041 (D. Minn. July 17, 2009) (also conceding personal jurisdiction by not raising it).
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Case: 10-1479 Document: 003110360423 Page: 53 Date Filed: 11/24/2010
nothing more than t he implementation of a nationwide policy. The Office of Detention and Removal Operations (DRO ) first deployed FOTs in 2003, sending eight teams to field offices in se ven cities, JA-254, including Newark, New Jersey. From the beginning of 2005 to mid-2006, Myers and Torres doubled the number of FOTs deployed to New Jersey and incr eased the FOTs’ arrest quotas by 800% . JA-537-38, 561 (SAC ¶¶29-30, 144); see also JA-499; JA-501-503. Not surprisingly, following the implem entation of the increased arrest quotas, the number of individuals arrested by New Je rsey FOTs doubled from FY 2006 to FY 2007. JA-538 (SA C ¶32.) The raids at i ssue in this case occurred during thi s period of heightened enforcement activity , from August 2006 t o April 2008. JA544-61 (SAC ¶¶49-139, 143).
Plaintiffs have also pled sufficient facts and presented supporting eviden ce to show that Torres was actively invol ved in New Jersey operations by: regularly communicating with the Newark Field Offi ce; administering mandates and quotas to that particular office; approvi ng New Jersey operations i n advance; and monitoring New Jersey operations. For exam ple, the January 2006 Torres Memo issued to “All Field Office Dir ectors” – including, by definition, the Newark Field Office director – established a quota of 1,000 a rrests per FOT per year and informed the directors that DRO Hea dquarters “will work with Field Office Directors in identifying and im plementing initiatives involving fugitive alien cases.” JA-499; see also JA-538 (SAC ¶30). The Septem ber 2006 Torres Memo, also sent to all Field Office Directors, explained that non-fugitive arrests could be counted toward the 1,000-arrest quota so l ong as the arrests we re made during an operation approved by DRO Headquarters. JA-501-04. If, as seem s highly likely, the arrests m ade during the raids at issu e in this case were counted toward the quotas, then Torres must have approved each of these raids, since they all included arrests of non-fugitives. The September 2006 Memo further instructed the Newark
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Field Office, along with the other field offi ces, to provide it s arrest statistics each week for distri bution by Torres’ office in a weekly newsletter publ icizing FOTs successes. Id.30
Consistent with these mandates, the Newark Field Office provided stati stics and reported directly to both Myers a nd Torres on New Jersey activities. For example, on April 2, 2007, Defendant Rodr iguez, the Acting Field Office Director in Newark, sent M yers a “Detention a nd Removal Operations (DRO), Newark Field Office: After-Action Report: Opera tion Return to Sender – New Jersey,” which included information on a ten-day fugitive operation in New Jersey that appears to have included one of the raids at issue in this case. JA-444; JA-555 (SAC ¶119). A few days later, on April 5, 2007, the Newark Field Office sent a memo to Myers advising her t hat on April 9, 2007, the Office would commence a fifteen-day fugitive operation througho ut New J ersey, pursuant to Operation Return to Sender, “to target, arrest, pr osecute, and rem ove 75 fugit ive aliens residing in the State of New Jersey.” Se e April 5, 2007, Memo from Newark Field Office to Myers, available at http://law.shu.ed u/ProgramsCenters/PublicIntGov Serv/CSJ/upload/ICE-Memos.pdf.
Armed with the inform ation they obtained from directly comm unicating with and monitoring the activities of the Newark Field Office, My ers and Torres issued a series of press releases betw een 2006 and 2007 that lauded as successful
30 Before it decided the m otions to dismiss, Plaintiffs submitted these memos to the dist rict court as attachments to Sc ott L. Walker' s February 6, 2009, letter. JA-499, 501-03. When personal jurisdi ction is challenged, plaintiffs may submit exhibits and affidavits to support their allegations. See Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8t h Cir. 2004) (“ The plaintiff's prima facie showing must be tested, not by the pleadings al one, but by the affidavits and exhibits presented with the m otions and in oppo sition thereto.”) (internal quotation omitted); Whitaker v. Am. Telecasting, Inc. , 261 F.3d 196, 208 (2d Cir. 2001); Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir. 1983).
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the substantial increase in arrests by the FOTs deployed to Newark. See JA-562-

63 (SAC ¶148 (citing five ICE Press Releases,

available at

http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/upload/ICE-Press-

Releases.pdf, which indicate that arrest s were made pursuant to Myers’ and

Chertoff’s nationwide enforcement strategy)).

Plaintiffs do not dispute that an offici al’s high-level policymaking stat us is

insufficient, alone, to confer personal ju risdiction; yet it is equally plain that

supervisory officials who pur posefully direct the im plementation of their policies

to a parti cular forum are subject to pe rsonal jurisdiction there, as anyone else

would be. See e.g. Baires v. U.S. , No. C 09-5171, 2010 WL 3515749, at *6 (N.D.

Cal. Sept. 8, 2010) (fi nding personal jurisdiction over high-level officials,

including Defendant Torres, because they “crafted a policy that shapes t he

behavior of an enorm ous governmental entity within the state of California”); Al-

Kidd v. Gonzales , No. CV:05-093, 2006 WL 5429570, at *4 (D. Idaho Sept. 27,

2006) (finding personal jurisdiction over A ttorney General Ashcroft, not because

of his supervisory position alone, b ut because he “spear-head ed” allegedly

unconstitutional practice challenged in forum ), aff’d in part, rev’d in part on other

grounds, 580 F.3d 949 (9th Cir. 2009), cert. granted in part on other grounds , No. 10-98, 2010 WL 2812283 (U.S. Oct. 18, 2010).31

31 Accordingly, the cases Myers and Torres cite that reject personal jurisdiction premised exclusively on a D.C. official’s su pervisory status are inapplicable here. See, e.g., McCabe v. Basham, 450 F. Supp. 2d 916 (N.D . Iowa 2006) (no personal jurisdiction over former Secret Servic e and Ho meland Security chiefs wher e jurisdiction was prem ised “upon the acts of low-level federal, state and/or local government employees”); Nwanze v. Philip Morris, 100 F. Supp. 2d 215 (S.D.N.Y. 2000) (mere supervisory authority over nati onal prison syst em insufficient basis for personal jurisdiction); James v. Reno, 1999 WL 615084, at *1 (D.C. Cir. July 2, 1999) (complained-of acts occurred out side district and no injury alleged to have occurred within district).

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Similarly unavailing is Myers and Torres’ argument that pe rsonal jurisdiction premised solely on a “fail ure to act” cannot satisfy t he “purposefully directed” standard. See Defs.’ Br . 45, 49. They rely heavily on Pettengill v. Curtis, 584 F. Supp. 2d 348, 357-358 (D. Mass. 2008), to support this proposition, but that decision is easily dist inguished. In Pettengill, Massachusetts plaintiffs alleged that Boy Scouts leaders had fail ed to enact nationwide policies preventing child abuse among troop leaders, but m ade no allegations that these same leaders had any predicate conduct or contacts in Massachusetts. Accordingly, the court found no personal jurisdiction: “a failure to act t hat was d irected nowhere in particular” did not create a “purposeful availment of the laws of one specific state.” Id. at 358-359. 32 Here, by contrast, Myers a nd Torres targeted their polic y creation, implementation, and m onitoring activities at New Jersey, wh ich caused the constitutional violations at issue.
Moreover, contrary to Defendants’ claim, a s upervisor’s knowledge of unconstitutional conduct, coupled with a failure to act, ca n be sufficient to confer personal jurisdiction if the omission s are directed at the forum. See McNeal v. Zobrist, 365 F. Supp.2d 1166, 1172 (D. Kan. 2005) (asserting personal jurisdiction over police supervisors in Missouri base d on alleged failure to train and supervise officers charged with using ex cessive force in Kansas); Al-Kidd, 2006 WL 5429570, at *4 (failure to correct constitutional violations in forum).

32 The product liability cases Myers

and Torres cite are simil arly

distinguishable because they stand for th e unremarkable proposition that a general

failure to warn – absent any ties to a specific jurisdiction – is insufficient. See,

e.g., Carty v. Beech Aircraft Corp. , 679 F.2d 1051, 1061 (3d Cir. 1982); Clebda v.

H.E. Fortna and B rother, Inc., 609 F.2d 1022, 1023-24 (1st Cir. 1979); Nat’l

Union Fire Ins. Co. v. Am. Eurocopter Corp., No. CV 09-136, 2009 W L 2849130,

at *7 (D. Haw. Aug . 26, 2009); see also Hanson v. Denckla, 357 U.S. 235, 250-56

(1958) (holding that Florida courts la cked personal jurisdi ction over out-of-stat e

defendant trust company that had no office, business, or assets in Florida).

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Finally, Myers and Torres do not dispute that Plaintiffs have satisfied the other two requirements for specific jurisdiction. See O’Connor, 496 F. 3d at 317. First, as the district court found, “[t] he alleged wrong arises directly out of Defendants’ forum-based activities[,]” including thei r “failure to properly supervise, investigate clai ms of unlaw ful home raids, and discipline their New Jersey staff.” Argueta I, JA-38. Second, conside rations of fair play support t he exercise of jurisdiction “given the sm all distance between Washington, D.C. and New Jersey, and the great stake the Di strict of New Jersey has in preventing violations of its residents’ constitutional rights.” Id.
B. Dismissal at the Pleading Stage Is Premature. Even if the Court were to find that th e facts as currently pled do not support a finding of personal jurisdiction, the proper remedy is not dismissal but remand to the district court to perm it additional discovery regarding Myers’ a nd Torres’ contacts with the forum. This Court has routinely perm itted jurisdictional discovery before considering a motion to dismiss, unless a plaintiff’s claims are “clearly frivolous.” Mass. School of Law at Andover , Inc. v. Am. Bar. Ass’n , 107 F.3d 1026, 1042 (3d Cir. 1997); Nehemiah v. Athletics Congress of the U.S.A. , 765 F.2d 42, 48 (3d Cir. 1985). See also Toys “R” Us, Inc. v. Step Two, S.A. , 318 F.3d 446, 456 (3d Cir. 2003) (jurisdictional discovery, rather than dismissal, preferred where reasonably particular allegations su ggest mere possibility of m inimum contacts). This permissive discovery rule m akes sense in the context of a dispute over personal jurisdiction which, unlike qua lified immunity, is a defense to liability and not an immunity from suit. Compare Robinson v. Hartzell Propeller, Inc. , 454 F.3d 163, 170-71 (3d Cir. 2006) (personal jurisd iction is a defense to liability), with,
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Mitchell, 472 U.S. at 526 (qualified imm unity provides one prot ection from burdens of litigation).
Plaintiffs’ claims are far from “clearly frivolous.” In the lim ited course of this litigation, new evidence has already come to light supporting Plaintiffs’ claims that Myers’ and Torres’ actions were pur posefully directed toward New Jersey. See, e.g., JA-499; JA-501-03; April 5, 2007, Memo from Newark Field Office to Myers, available at http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/ upload/ICE-Memos.pdf. If the Court does not find the current record sufficient to establish personal jurisdiction, these mem oranda, at the very least, suggest the existence of further evidence that would be sufficient. See Toys “R” Us, 318 F.3d at 457 (jurisdictional discovery mandated where “aspects of the record should have [] alerted the District Court to the possible existence of the ‘something else’ needed to exercise personal jurisdiction”). Ju risdictional discovery is pa rticularly appropriate where, as here, information about the full extent of Myers’ and Torres’ contacts with New Jersey is exclusively in their and the governm ent’s possession. Id. (allowing j urisdictional discovery where “information, known onl y to [the defendant], would speak to an essentia l element of the personal jurisdictio n calculus.”).
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CONCLUSION For the foregoing reasons, the decision below should be affirmed.

Dated: November 24, 2010

Respectfully submitted,
By: /s/ Baher Azmy
Baher Azmy, Esq. L. Danielle Tully, Esq. Marissa Litwin, L.A.R. 46.3(a) Keara Waldron, L.A.R. 46.3(a) SETON HALL SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE One Newark Center Newark, New Jersey 07102-5210 (973) 642-8700
Catherine Weiss, Esq. Scott L. Walker, Esq. Natalie J. Kraner, Esq. Heather C. Bishop, Esq. Aurora F. Parrilla, Esq. Frank T.M. Catalina, Esq. Amit Sondhi, Esq. LOWENSTEIN SANDLER PC Attorneys at Law 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500

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Case: 10-1479 Document: 003110360423 Page: 60 Date Filed: 11/24/2010

CERTIFICATION OF BAR MEMBERSHIP I hereby certify that I am a memb er of the Bar of the United States Court of Appeals for the Third Circuit.

Dated: November 24, 2010

By: /s/ Baher Azmy Baher Azmy, Esq.

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Case: 10-1479 Document: 003110360423 Page: 61 Date Filed: 11/24/2010

CERTIFICATION OF COMPLIANCE I hereby certify that this brief co mplies with the type-volume lim itation of Fed. R. App. P. 32(a)(7)(B ) because this brief contains 13, 955 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I further certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirement s of Fed. R. App. P. 32(a)(6) because th is brief has been prepared in a propor tionally spaced typeface using Mi crosoft Word 2003 in 14-point Times New Roman. I further c ertify that, pursuant to the Court’s Local Appellate Rule 31.1(c), the text of the electr onic brief is identical to the text in th e paper copies filed with the Court.

Dated: November 24, 2010

By: /s/ Baher Azmy Baher Azmy, Esq.

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Case: 10-1479 Document: 003110360423 Page: 62 Date Filed: 11/24/2010

CERTIFICATION OF VIRUS SCAN I hereby certify that I ha ve caused to be scanned for viruses the electronic version of Plaintiffs-Appellees Brief and that no viruses were detected. The virus scan was conduced using Symantic Endpoint Protection version 11.0.5002.333.

Dated: November 24, 2010

By: /s/ Baher Azmy Baher Azmy, Esq.

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Case: 10-1479 Document: 003110360423 Page: 63 Date Filed: 11/24/2010

CERTIFICATION OF SERVICE I hereby certify that on November 24, 2010, the Brief of Plaintiffs-Appellees was served via the Court’s E CF system and Federal Expre ss on the following persons:
Barbara L. Herwig, Esq. Howard S. Scher, Esq. Attorneys, Appellate Staff Civil Division, Department of Justice 950 Pennsylvania Avenue, NW, Room 7239 Washington, D.C. 20530-0001 In addition, I hereby certify that ten hard copies were sent to the Clerk of the Court by Federal Express.

Dated: November 24, 2010

By: /s/ Baher Azmy Baher Azmy, Esq.

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 !aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     111     ooof f     333     PPPaaagggeeeI IDDD: :     444333999

GREGORY G. KATSAS Acting Assistant Attorney General Civil Division DAVID J. KLINE Director, District Court Section Office of Immigration Litigation GJON JUNCAJ Senior Litigation Counsel District Court Section Office of Immigration Litigation U.S. Department of Justice Civil Division Ben Franklin Station P.O. Box 868 Washington, D.C. 20044-0868 Tel. (202) 307-8514 gjon.juncaj@usdoj.gov

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

MARIA ARGUETA, et al., Plaintiffs, v.
IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), et al.,
Defendants.

Hon. Peter G. Sheridan
No. 08-CV-01652- PGS-ES
Notice of United States Defendants' Motion To Dismiss
Plaintiffs' Request For Injunctive Relief

TO: Baher Azmy, Esq. Bassina Farbenblum, Esq. Scott Michelman, Esq. Seton Hall School of Law

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     222     ooof f     333     PPPaaagggeeeI IDDD: :     444444000
Center for Social Justice 833 McCarter Highway Newark, NJ 07102-5210 (973) 642-8709 R. Scott Thompson, Esq. Scott L. Walker, Esq. Heather C. Bishop, Esq. Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068 (973) 597-2500 Attorneys for Plaintiffs COUNSEL:
PLEASE TAKE NOTICE that on September 4, 2008, at 11:00 a.m., or as
soon thereafter as counsel may be heard, defendants Immigration and Customs Enforcement and, as sued in their official capacities, Julie L. Myers, John P. Torres, Scott Weber, Bartolome Rodgriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 (collectively "United States defendants"), will move before the Honorable Peter G. Sheridan, United States District Judge, at the United States District Court, Newark, New Jersey, for an Order granting dismissal of plaintiffs' equitable relief claims pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6).
PLEASE TAKE FURTHER NOTICE that in support of this motion,
2

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     333     ooof f     333     PPPaaagggeeeI IDDD: :     444444111

United States defendants will rely upon the Memorandum of Support submitted

herewith, along with the attached exhibits of public record.

PLEASE TAKE FURTHER NOTICE that, pursuant to Federal Rule of

Civil Procedure 78, disposition of this motion is requested on the papers in

accordance with the proposed form of Order submitted herewith, but that United

States defendants will otherwise appear for a hearing on September 4, at 11:00

a.m., or as soon thereafter as counsel may be heard.

Respectfully Submitted,

Dated: June 26, 2008

GREGORY G. KATSAS Acting Assistant Attorney General Civil Division DAVID J. KLINE Director, District Court Section Office of Immigration Litigation

/s/ Gjon Juncaj GJON JUNCAJ Senior Litigation Counsel District Court Section Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 307-8514

Attorneys for the United States defendants

3

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     111     ooof f     333000     PPPaaagggeeeI IDDD: :     444444222

GREGORY G. KATSAS Acting Assistant Attorney General Civil Division DAVID J. KLINE Director, District Court Section Office of Immigration Litigation GJON JUNCAJ Senior Litigation Counsel District Court Section Office of Immigration Litigation U.S. Department of Justice Civil Division Ben Franklin Station P.O. Box 868 Washington, D.C. 20044-0868 Tel. (202) 307-8514 gjon.juncaj@usdoj.gov

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

MARIA ARGUETA, et al., Plaintiffs, v.
IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), et al.,
Defendants.

Hon. Peter G. Sheridan
No. 08-CV-01652- PGS-ES
Memorandum In Support of United States Defendants' Motion
To Dismiss Plaintiffs' Request For Injunctive Relief
Return Date: September 4, 2008

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     222     ooof f     333000     PPPaaagggeeeI IDDD: :     444444333
TABLE OF CONTENTS PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 FACTUAL ALLEGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Operation Return to Sender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Allegations of Plaintiffs Chavez, Galindo, and W.C.. . . . . . . . . . . . . 5 ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. THE EQUITABLE RELIEF CLAIMS MUST BE DISMISSED. . . . 7
A. Legal Standards for Rule 12(b)(1) or (b)(6) Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Plaintiffs Have the Burdens of Establishing Standing And That A Case or Controversy Exist. .. . . . . . . . . . . . . . . . . . . . . . . . 8
C. Plaintiffs’ Equitable Relief Claims Should Be Dismissed Because Plaintiffs Lack Standing.. . . . . . . . . . . . . . . . . . . . . . 11 1. Department of Homeland Security Regulations and Plaintiffs’ Own Exhibits Undercut That There Is A Concrete Threat of Imminent Future Harm From An Unlawful Government Policy... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. Plaintiffs Lack Standing Despite Their Allegation That ICE Agents Will Return And “Next Time It Will Be Worse.”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3. Plaintiffs Lack Standing Because Their Putative Injury Lacks Redressability. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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D. Plaintiffs Have Otherwise Failed To State A Claim Upon Which Equitable Relief Can Be Granted. . . . . . . . . . . . . . . . . 22
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 EXHIBIT 1
Excerpt of Federal Law Enforcement Training Center: 2007 and 2008 Catalog of Training Programs EXHIBIT 2 Mancha v. ICE, 2007 WL 4287766 (N.D. Ga., December 5, 2007)
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TABLE OF AUTHORITIES
CASES
Bell Atlantic Corp. v. Twombly, __ U.S. __ 127 S. Ct. 1955 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Brown v. Fauver, 419 F.2d 395 (3rd Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Calvin Klein Cosmetics, Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665 (8th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62 (3rd Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
City of Los Angeles v. Lyons, 461 U.S. 95 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, passim
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286 (3rd Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20, 21
Dombrowski v. Pfister, 380 U.S. 479 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Dykes v. Southeastern Pennsylvania Transp. Authority, 68 F.3d 1564 (3rd Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Elend v. Basham, 471 F.3d 1199 (11th Cir.2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     555     ooof f     333000     PPPaaagggeeeI IDDD: :     444444666
Gould v. United States, 220 F.3d 169 (3rd Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Khodara Environmental, Inc. v. Blakey, 376 F.3d 187 (3rd Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20
Mancha v. ICE, 2007 WL 4287766 (N.D. Ga., December 5, 2007).. . . . . . . . . . . . . . . . . . . 21
Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884 (3rd Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Noh v. INS, 248 F.3d 938 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
O'Shea v. Littleton, 414 U.S. 488 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 23
Packard v. Provident Nat'l Bank, 994 F.2d 1039 (3rd Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pennsylvania Prison Soc. v. Cortes, 508 F.3d 156 (3rd Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Pension Benefit Guaranty Corp. v. White Consolidated Industries, Inc., 998 F.2d 1192 (3rd Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 16
Public Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3rd Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SEC v. Warren, 583 F.2d 115 (3rd Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iv

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     666     ooof f     333000     PPPaaagggeeeI IDDD: :     444444777
Storino v. Borough of Point Pleasant Beach, 322 F.3d 293 (3rd Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trump Hotels & Casino Resorts, Inc., v. Mirage Resorts Inc., 140 F.3d 478 (3rd Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States Postal Service v. Gregory, 534 U.S. 1, 122 S.Ct. 431 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Warth v. Seldin, 422 U.S. 490 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Whitmore v. Arkansas, 495 U.S. 149 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 UNITED STATES CONSTITUTION
U.S. Const. art. III, § 2, cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 STATUTES
Immigration and Nationality Act of 1952; as amended: Section 287(a)
8 U.S.C. § 1357(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 287(a)(1)
8 U.S.C. § 1357(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Federal Rules of Civil Procedure
Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 21 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22 Fed. R. Civ. P. 65(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23
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REGULATIONS 8 C.F.R. § 287. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 8 C.F.R. § 287.5(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 8 C.F.R. § 287.8(f)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     888     ooof f     333000     PPPaaagggeeeI IDDD: :     444444999
PRELIMINARY STATEMENT All plaintiffs in this action seek damages from federal and state agents, as sued in their individual capacities, based on allegations of past violations of plaintiffs’ Fourth and Fifth Amendments rights. In addition, plaintiffs request equitable relief from federal defendants Immigration and Customs Enforcement ("ICE") and, as sued in their official capacities, Julie L. Myers, John P. Torres, Scott Weber, Bartolome Rodgriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30 (collectively "United States defendants"). Specifically, plaintiffs’ Prayer for Relief seeks: Preliminary and permanent injunctive relief barring all further intimidation of plaintiffs Walter Chavez, Ana Galindo, and W.C., and any and all entry into the home of plaintiffs Walter Chavez, Ana Galindo, and W.C. absent a warrant issued by a judicial officer or informed, voluntary consent by either plaintiff Chavez or plaintiff Galindo[.] Doc. 15 (First Amended Complaint (“FAC”) at p. 62, Prayer for Relief). To support their request for injunctive relief plaintiffs cite to specific allegations of an encounter with federal immigration agents at the home of plaintiffs Walter Chavez (“Mr. Chavez”), his wife Ana Galindo (“Ms. Galindo”), and their son, “W.C.” (collectively, “the Chavez family”), that allegedly resulted in their Fourth and Fifth Amendment rights’ being violated. Plaintiffs allege that such violations are part of the United States defendants’ modus operandi when enforcing the nation’s
1

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immigration laws. FAC ¶ 4. Specifically, they allege that ICE officials directed, acquiesced, or were indifferent to the risk that such conduct would occur by ICE agents who allegedly lack proper training and are otherwise under the pressure of ICE goals to arrest more illegal aliens. FAC ¶¶ 4-5, 36, 38, 49-54, 191, 195.
The instant motion, brought on behalf of the United States defendants only, seeks dismissal of plaintiffs' equitable relief claims pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction or Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Specifically, plaintiffs lack standing to request injunctive relief because (1) the totality of their First Amended Complaint fails to allege a concrete threat of imminent future harm such that an injunction should be issued, and (2) their request is patently an impermissible “obey the law” injunction that fails to satisfy the redressability requirement for standing, and otherwise fails to state a claim upon which relief can be granted.
Accordingly, the United States defendants respectfully request that the equitable relief claims in the First Amended Complaint be dismissed.1
1 In addition to the First Amended Complaint being filed on May 22, 2008, the Chavez family also filed an order to show cause requesting a preliminary injunction. Doc. 16. The parties subsequently appeared for a show cause hearing on May 27, 2008, where the United States defendants stated that a letter relating to the Chavez family’s concerns would be provided to Plaintiff’s counsel and filed with the Court.
2

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     111000     ooof f     333000     PPPaaagggeeeI IDDD: :     444555111
FACTUAL ALLEGATIONS A. Operation Return to Sender Plaintiffs’ couch their complaint amongst an alleged background of government abuse under a law enforcement initiative titled “Operation Return to Sender” (“the Operation”). See generally First Amended Complaint (“FAC”) at ¶ 1-6, 34-54; id. at Exhibits A-E. Plaintiffs describe the Operation as “a practice of unlawful and abusive raids of immigrant homes” conducted as a “predictable consequence of the Department of Homeland Security’s arbitrary, exponentially increased quotas for the arrest of immigrants with old deportation orders.” FAC ¶ 1. In general, plaintiffs allege that the Operation, which has resulted in an increase in the number of illegal aliens arrested in New Jersey, id. ¶ 38, has also resulted in “the creation of a culture of lawlessness and lack of accountability.” Id. ¶ 191.
Doc. 19-2 (Letter of James T. Hayes, Jr., ICE Acting Assistant Director of Enforcement, dated and filed May 28, 2008). At the hearing, the Court also stated, in light of jurisdictional concerns raised by the United States defendants, that it was permitting the filing of the instant dispositive motion. The Court added that, should the instant motion be denied following a hearing on September 4, 2008, discovery relating to the Chavez family’s preliminary injunction request would be ordered at that time. See Doc. 22-2 (proposed order). As such, the United States defendants reserve the right to oppose the preliminary injunction after discovery should the instant motion be denied.
3

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B. Allegations of Plaintiffs Chavez, Galindo, and W.C.2 Plaintiffs allege in their First Amended Complaint (“FAC”) that on the morning of April 2, 2008, at approximately 7:15 am, Mr. Chavez was returning to his home in Paterson, New Jersey when “six or more vehicles converged on his house.” FAC at ¶ 77-78. The vehicles were occupied by “John Doe ICE Agents,” and allegedly one of the John Doe ICE Agents grabbed Mr. Chavez by the collar and pulled him out of his vehicle. Id. at ¶ 78. The agents asked to see Ms. Galindo, Mr. Chavez’s wife, and then allegedly pushed Mr. Chavez to the front door of his house where he was told, “If you don’t open the door, we’re going to make things worse.” Id. at ¶ 79-80. Mr. Chavez alleges he opened the door and was shoved into the house, whereby at least seven John Doe ICE Agents “ran inside the house.” Id. ¶ 80. Three other agents allegedly blocked the door. Id. Once inside the home, a John Doe ICE Agent allegedly ran over to Ms. Galindo and repeatedly yelled at her, “Where are the illegal people?” Id. ¶ 82. Another agent allegedly asked the same of Mr. Chavez, and one of the agents allegedly stated, “It’s illegal to be hiding illegal. If you don’t tell me where they are, things will get worse. If you don’t tell me where they are, we’ll arrest you.”
2 Plaintiffs Chavez and Galindo have provided affidavits in support of their request for a preliminary injunction. The affidavits have not been attached as exhibits to their First Amended Complaint.
4

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Id. Thereafter, a female agent asked Ms. Galindo where her sisters were, to which Ms. Galindo replied she had two sisters in Guatemala, and gave their names and her own. Id. ¶ 83. The female agent then said, “This is not the person we’re looking for.” Id.
Following this questioning, W.C. allegedly came out of his bedroom and ran to Ms. Galindo crying. Id. ¶ 84. Upon seeing W.C. emerge from his room, four agents allegedly put their hands on their gun, and one of the agents grabbed his gun and pointed it directly at Ms. Galindo and her son. Id. ¶ 84-85. In response, W.C. began to cry and an agent came over “and screamed in her face again, ‘Where are the illegal people?’” Id. ¶ 86. The agent allegedly added, “If you’re hiding illegal people here, we’re going to take your son and your residency away.” Id. at 87. After allegedly being accused again of hiding illegal aliens, Ms. Galindo replied that only she, Mr. Chavez, and their son lived in the house. Id. at ¶ 89.
Plaintiffs allege that the agents at no time requested permission for anything they did, including entering their home and allegedly searching through photo albums, nor did they produce a warrant. Id. at ¶ 90. Finally, before leaving, one of the agents allegedly “directly announced, ‘We’re going to come back. And next time it will be worse.’” FAC ¶ 91.
5

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     111333     ooof f     333000     PPPaaagggeeeI IDDD: :     444555444
ARGUMENT AND AUTHORITIES I. THE EQUITABLE RELIEF CLAIMS MUST BE DISMISSED
A. Legal Standards for Rule 12(b)(1) or (b)(6) Motion to Dismiss Federal Rule of Civil Procedure 12(b)(1) allows the court to dismiss a case for lack of subject matter jurisdiction. The burden of establishing subject matter jurisdiction lies with the plaintiff. See Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3rd Cir. 1993); Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977). In deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc., v. Mirage Resorts Inc., 140 F.3d 478, 483 (3rd Cir. 1998). However, the plaintiff must allege factual allegations beyond the speculative level, and the court must accept the allegations of the complaint as true and dismiss the case only when a plaintiff fails to meet his obligation "to provide the grounds of his entitlement to relief [which] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, __ U.S. __ , 127 S. Ct. 1955, 1964-65 (2007) (citations and internal quotation marks omitted).
6

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     333444-­-­-111              FFFi il leeeddd     000666/ /222666/ /000888              PPPaaagggeee     111444     ooof f     333000     PPPaaagggeeeI IDDD: :     444555555
In deciding a motion to dismiss, a court should generally consider only the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and "undisputably authentic" documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss. See Pension Benefit Guaranty Corp. v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196-97 (3rd Cir. 1993); Dykes v. Southeastern Pennsylvania Transp. Authority, 68 F.3d 1564, 1567 (3rd Cir. 1995). In addition, “the court may consider and weigh evidence outside the pleadings to determine if it has jurisdiction.” Gould v. United States, 220 F.3d 169, 178 (3rd Cir. 2000) (citing to Mortensen, 549 F.2d at 891). When a dispute exists as to certain jurisdictional facts alleged by plaintiff, "the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case." Carpet Group Int’l v. Oriental Rug Importers Ass’n, 227 F.3d 62, 69 (3rd Cir. 2000).
B. Plaintiffs Have the Burdens of Establishing Standing And That A Case or Controversy Exist.
It is a fundamental precept of constitutional law that federal courts only have jurisdiction over concrete cases or controversies. U.S. CONST. art. III, § 2, cl.
7

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1. The case-or-controversy requirement under Article III ensures that “the Federal Judiciary respects the proper – and properly limited – role of the courts in a democratic society.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1860 (2006) (ROBERTS, C.J.) (internal quotation marks and citation omitted). “A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990).
A plaintiff will have standing only where (1) he or she has an injury-in-fact, which is an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the defendant's conduct, and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 290-91 (3rd Cir. 2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); Khodara Environmental, Inc. v. Blakey, 376 F.3d 187, 193 (3rd Cir. 2004) (collecting cases)). “Plaintiffs bear the burden of proving standing.” Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3rd Cir. 2003). More particularly, for injunctive relief plaintiffs must show “a real and immediate threat of future injury in order to satisfy the ‘injury in fact’ requirement.” City of Los
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Angeles v. Lyons, 461 U.S. 95, 102-05 (1983) (holding that a party has standing to seek injunctive relief only if he alleges a real and immediate – as opposed to a merely conjectural or hypothetical – threat of future injury) (emphasis added); Pennsylvania Prison Soc. v. Cortes, 508 F.3d 156, 161-62 (3rd Cir. 2007).
Claims for injunctive and declaratory relief are prospective, Dombrowski v. Pfister, 380 U.S. 479, 485 (1965) (“it is fundamental that ‘injunctive relief looks to the future’ ”), and courts are particularly vigilant when determining whether a party has standing to assert such claims. Allegations of past injury alone are insufficient to provide a plaintiff with standing to seek declaratory or injunctive relief. Lyons, 461 U.S. at 102-03; Brown v. Fauver, 419 F.2d 395, 400 (3rd Cir. 1987) (allegations of past exposure to unconstitutional state action not sufficient to secure standing to sue for prospective relief). Thus, even if alleged abuses concerning past events are true, a plaintiff lacks standing to seek injunctive relief unless there is a real threat of imminent future harm. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (finding no standing where county judge previously made discriminatory rulings against members of a class, but none was threatened with a future discriminatory ruling). // //
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C. Plaintiffs’ Equitable Relief Claims Should Be Dismissed Because Plaintiffs Lack Standing 1. Department of Homeland Security Regulations and Plaintiffs’ Own Exhibits Undercut That There Is A Concrete Threat of Imminent Future Harm From An Unlawful Government Policy.
Plaintiffs’ assertions that ICE has and/or continues to permit or authorize the unlawful activities alleged in this case, are speculative and conjectural. Such allegations can not serve as a basis to conclude that plaintiffs have presented a "case or controversy" for prospective equitable relief under Article III. See Lyons, 461 U.S. at 101-02; O'Shea, 414 U.S. at 493-95. Indeed, the United States defendants’ own regulations require that immigration officers obey the very laws plaintiffs allege the officers are authorized to violate. Furthermore, plaintiffs’ own objective evidence undermines any assertions to the contrary.
First, the Department of Homeland Security’s own regulations require that an immigration officer “may not enter . . . a residence . . . for the purpose of questioning the occupants or employees concerning their right to be or remain in the United States unless the officer either has a warrant or the consent of the owner or other person in control of the site to be inspected.” 8 C.F.R. § 287.8(f)(2) (emphasis added). Plaintiffs’ speculative assertions do not override the presumption that this regulation is adhered to as a matter of policy. United
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States Postal Service v. Gregory, 534 U.S. 1, 10, 122 S.Ct. 431 (2001) (stating that "a presumption of regularity attaches to the actions of Government agencies . . . ."); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); cf. Noh v. INS, 248 F.3d 938 (9th Cir. 2001) (“there is a presumption that an officer exercising the powers of his office does so lawfully”).
Second, plaintiffs allege that the United States defendants have failed “to provide the agents involved with adequate training (or for some newer agents, any training) on the lawful execution of fugitive operations.” FAC ¶ 5 (emphasis added). They cite as evidence – without reference to any page number – a March 5, 2007, Department of Homeland Security, Inspector General’s Report, and state:
* * * * * * * * * (c) in 2006, DRO began hiring lower-level, less experienced officers for fugitive operations; and (d) some fugitive operations agents have not completed the Fugitive Operations Training Program – 2004 guidelines allow the agents to work for up to two years before receiving the necessary training. FAC ¶ 53 (citing FAC Exhibit C). Contrary to the assertion that some “newer agents” have not had “any training” (such that Plaintiffs are under a concrete threat of imminent future harm by “untrained agents”) FAC ¶ 5, the Inspector
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General’s report concludes “[Fugitive Operations] Team Members Have Basic
Law Enforcement Training.” FAC Exhibit C at 29 (emphasis added). Moreover,
the report confirms it is policy that “before a field office director can authorize an
officer’s participation in fugitive operations, the officer must have completed
some basic law enforcement training.” Id. at 29-30. Also, “Although not all team
members have attended Fugitive Operations Training Program, at a minimum, they all have completed some basic law enforcement training.”3 Id. (emphasis added).
The basic law enforcement training course is described as including courses
on “immigration and nationality, criminal statutes and statutory authorities, agency
operations and procedures, defensive tactics, use of firearms, and drivers training.”
Id. at 31 (citing DHS, Federal Law Enforcement Training Center Catalog of
Training Programs, 2005-2006, and Customs and Border Patrol Academy
Courses). The current ICE basic training program, as described in the current
2 The report describes basic law enforcement training to be successful completion of the Immigration Officer Basic Training Course or the United States Border Patrol Academy. More importantly, the Court should take notice that the Department of Homeland Security has detailed regulations concerning “Field Officers; Powers and Duties,” 8 C.F.R. § 287, et. seq., and explicitly authorizes immigration officers who have successfully completed “basic immigration law enforcement training” to conduct searches pursuant to “[Immigration and Nationality Act section 287(a)” which relates to the “powers without warrant” of immigration officers. 8 C.F.R. § 287.5(d); see also INA § 287(a), 8 U.S.C. § 1357(a).
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Federal Law Enforcement Catalog (attached as Exhibit 1), is 63 days in duration. See Exhibit 1 (Excerpt of Federal Law Enforcement Training Center, Catalog of Training Programs, 2007-08, pp. 145-46).4 In addition to the items described in the 2007 Inspector General Report, the training includes “Detention and Removal Operation Procedures,” “Interviewing: Cross-Cultural Communications,” “Arrest Techniques,” and “Officer Liability.” Id. Thus, Plaintiffs’ allegations of sanctioned lawlessness by way of lack of training or other institutional apathy, is unsupported by their own evidence.
Third, plaintiffs’ citation to the goal-oriented success of ICE does nothing to establish that the Chavez family have standing to pursue their equitable relief claims. FAC ¶¶ 36, 38. Plaintiffs correctly note that Congress has endorsed the success of the ICE Fugitive Operations program by providing funding for additional operational teams, see FAC ¶ 35; FAC Exhibit C at 5 (DHS Inspector General Report), yet imply that such success could only be achieved by an unlawful means or policy. For example, plaintiffs cite to the alleged “pretextual” arrests of nonfugitive or noncriminal aliens during fugitive operation enforcement actions, but fail to explain how such arrests are unlawful. FAC ¶¶ 50, 53. To the contrary, once again, plaintiffs’ own evidence demonstrates Congress has
4 Entire catalog available at http://www.fletc.gov/training/cotp.pdf/view.
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authorized ICE to question any person as to their right to enter, reenter, pass through, or reside in the United States. FAC Exhibit D, at 3 (Letter from ICE Assistant Secretary Julie L. Myers) (citing INA § 287, 8 U.S.C. § 1357(a)(1)). If that person is deemed to be an alien who is in the United States illegally, he or she may be arrested without warrant, and processed accordingly for removal. Id. Thus, although plaintiffs’ citation to a litany of articles or other matters demonstrates the political debate over the increased success of immigration enforcement, FAC ¶¶ 187-90, it does nothing to allege that ICE operates under a policy that violates the law such that this court has jurisdiction over a concrete case or controversy because a realistic and imminent threat of future harm exists.5
Similarly, this Court should decline to credit the assertion that “inaccurate” data relied upon by ICE, FAC ¶ 3, necessarily results in unlawful enforcement activity by ICE agents. To clarify, the DHS Inspector General Report upon which plaintiffs rely, states “50% of data is accurate, and there is more incomplete than inaccurate information.” FAC Exhibit C at 15. Plaintiffs fail to explain that in
5 Plaintiffs cite to several articles but do not include as exhibits the articles in their entirety. It should be noted, however, that several of the article titles indicate that they merely highlight the success of immigration enforcement actions. FAC at 39, fn.10 (“Immigration officials make 137 arrests around N.J.”), fn.16 (“Immigration Raid Nets 7"), fn.17 (“18 Reputed Gang Members Arrested”), fn.20 (“Six Arrested in Immigration Raids”), fn.23 (“City Police, federal agents arrest 12 illegal; Critics: Action violates ‘Save Haven’ measure”) (emphasis added).
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2006 ICE made efforts to ensure that the data referenced (biographical records, detention records, case records, and jail records), was updated and accurate. More importantly, the report – incorrectly described by plaintiffs as critical of ICE (FAC ¶ 53) – provides nothing to support the speculative conclusion that inaccurate or incorrect data leads to Fourth and Fifth Amendment violations. FAC Exhibit C at 15.
In sum, the United States defendants' regulations and plaintiffs’ own objective evidence demonstrates that ICE places an emphasis on carrying out its duties to enforce the nation’s immigration laws in a lawful manner. See FAC Exhibits C and D. Plaintiff’s pleadings fail to demonstrate otherwise, and are insufficient to establish a case or controversy.
2. Plaintiffs Lack Standing Despite Their Allegation That ICE Agents Will Return And “Next Time It Will Be Worse.”
Plaintiffs Chavez, Galindo, and W.C., allege that they are under a real and imminent threat of future harm because they were allegedly told by ICE agents “We’re going to come back. And next time it will be worse.” FAC ¶ 91. This alleged statement should not be viewed in a vacuum, but rather in the context of the entire First Amended Complaint and its exhibits. Pension Benefit Guaranty Corp, 998 F.2d at 1196-97. Even assuming the statement was made, the First
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Amended Complaint does not demonstrate a real and imminent threat of future harm exists to the Chavez family. Lyons, 461 U.S. at 102-05.
First, as explained above, plaintiffs' objective evidence demonstrates ICE seeks to enforce the immigration laws in a lawful manner. Thus, even if it is true that an ICE agent stated “[w]e’re going to come back,” this does not demonstrate a realistic threat of imminent future harm from the United States defendants who operate under a lawful policy.
Second, any realistic substance that could be attributed to the alleged statement is undercut by the fact that plaintiffs allege that ICE operates its alleged unlawful policy under the pretext that it is seeking fugitives, and that much of the information relied upon by ICE is inaccurate or incorrect. FAC ¶ 49-53, 54 (“The raids on plaintiffs’ homes exemplify the extraordinary level of inaccuracy.”). If this allegation is assumed to be true, then it must also follow that ICE would have no interest to return and enforce the nation’s immigration laws (unlawfully or not) at the Chavez family home because, as plaintiffs allege:
(1) ICE agents “repeatedly” stated they were seeking “illegal people” (FAC ¶ 82, 87, 89), however;
(2) the Chavez family are not “illegal people” and they informed the ICE agents that they are not “hiding illegal people” (FAC ¶ 77, 87, 89 (stating Ms.
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Galindo informed ICE only the Chavez family lives in the house)); (3) Ms. Galindo’s two sisters are allegedly in Guatemala (FAC ¶ 83), and; (4) an ICE agent concluded, “This is not the person we’re looking
for.” FAC ¶ 83. With these conflicting allegations, and absent anything but a speculative
assertion that an unlawful “policy” or “modus operandi” (FAC ¶ 4) exists, the Chavez family has not met their burden to demonstrate a realistic threat of imminent future harm at the hands of ICE. Lyons, 461 U.S. at 102-05. The Supreme Court’s decision in Los Angeles v. Lyons requires this result.
Lyons alleged he was placed in a “chokehold” during a routine traffic stop and thereafter sought to enjoin Los Angeles police officers from employing “chokeholds” in the future. Lyons, 461 U.S. at 97-98. However, the Supreme Court held that the plaintiff lacked standing to seek this prospective relief because he failed to show that “he was likely to suffer future injury from the use of the chokeholds by police officers.” Id. at 105. The Court emphasized that the plaintiff's prior injury did nothing to establish a “real and immediate threat” that he would again be subjected to an illegal use of a chokehold by a law enforcement officer. Id. The Court also made clear in Lyons that “a real and immediate threat” of future injury could not be demonstrated merely through broad and conclusory
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allegations, noting that the allegation of “routine” use of chokeholds in situations
where they were unnecessary “f[ell] far short of the allegations that would be
necessary to establish a case or controversy between the parties.” Id.
The Court emphasized and summarized that:
In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use of the control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures of the City's policy.
Lyons, 461 U.S. at 105-06 (underlined emphasis added, italicized emphasis in
original).
Likewise, even though the Chavez family has alleged that an ICE agent
threatened them with future harm (leaving aside the conflicting deduction that ICE
would have no interest in returning to the home as it was determined that the
person sought did not reside there), they have not realistically alleged that (1) all
ICE agents violate Fourth and Fifth Amendment rights when conducting fugitive
enforcement operations, or (2) that ICE orders or authorizes such activity. Id.

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3. Plaintiffs Lack Standing Because Their Putative Injury Lacks Redressability.
Plaintiffs also fail the standing requirement because their putative injury lacks redressability. Redressability is established by a more than “merely speculative” showing that a court can grant relief to redress the plaintiff's injury. Danvers, 432 F.3d at 291 (citing Lujan, 504 U.S. at 560-6). Here, the Chavez family seeks as relief from future harms, that the Court “bar all further intimidation of plaintiffs . . . and any and all entry into the home . . . absent a warrant . . . or informed, voluntary consent.” FAC at 62, Prayer for Relief (c). In sum, plaintiffs seek an injunction requiring the United States defendants to obey the law. This type of injunction is impermissible.
Specifically, the injunction requested here is too vague and overbroad to be permitted. Public Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 83 (3rd Cir. 1990) (“Overbroad language in an injunction that essentially orders a party to obey the law in the future may be struck from the order”); SEC v. Warren, 583 F.2d 115, 121 (3rd Cir. 1978) (affirming district court's decision to dissolve an injunction that “merely require[d] defendants ‘to obey the law’ in the future . . . a requirement with which they must comply regardless of the injunction”); cf. Calvin Klein Cosmetics, Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987); See generally Fed.R.Civ.P. 65(d)

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(requiring that an injunction “be specific in terms” and “describe in reasonable detail . . . the act or acts sought to be restrained”). Although these cases speak in terms of a court’s ability to enter an injunction pursuant to Federal Rule of Civil Procedure 65(d), the end result is the same. If this Court is precluded from entering the injunction that Plaintiffs Chavez, Galindo, and W.C. seek, it necessarily follows that plaintiffs’ equitable relief request can not be redressed by the injunction they seek.
In a case containing substantially identical allegations against ICE where an “obey the law” injunction was sought, the district court concluded plaintiffs lacked standing, in part, because their claims lacked redressability. See Mancha v. ICE, 2007 WL 4287766, at *2-3 (N.D. Ga., December 5, 2007) (attached as Exhibit 2). Although not published, the Mancha case, which is also cited by plaintiffs in an attempt to support the allegation of nationwide abuse by ICE (FAC ¶ 187), persuasively explains that “[e]ven if Rule 65(d), by itself, is not a concern at the pleadings stage, standing is always a concern at any stage of the case.” Id. at *3. Furthermore, the decision goes on to highlight the inherent case-by-case fact specific contents of a Fourth or Fifth Amendment assessment, and the inability to enforce an “obey the law” injunction in that context. Id. (citing Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir.2006) (“Plaintiffs also fail the standing requirements
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because the putative injury lacks redressability. First, the inchoate nature of the claim provides an insurmountable obstacle for a court to fashion an injunction that accomplishes anything beyond abstractly commanding the Secret Service to obey the First Amendment.”).
In sum, plaintiffs’ request for an injunction requiring the United States defendants to obey the law fails to meet the redressability requirement for standing.
D. Plaintiffs Have Otherwise Failed To State A Claim Upon Which Equitable Relief Can Be Granted.
Even assuming plaintiffs have somehow satisfied the "case or controversy" requirement, the equitable relief request should nonetheless be dismissed under Rule 12(b)(6). Specifically, assuming arguendo that plaintiffs have asserted a sufficient likelihood of future injury to satisfy the "case or controversy" requirement of Article III standing to seek equitable relief, plaintiffs have failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In Lyons, the Court held that equitable relief is not available "absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff[s] will be wronged again -- a 'likelihood of substantial and immediate irreparable injury.'" Lyons, 461 U.S. at 111 (quoting O'Shea, 414 U.S. at 502).
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As discussed above, plaintiffs have failed to adequately allege that they face a “likelihood of substantial and immediate irreparable injury” in this case. Lyons, 461 U.S. at 111. Even if taken as true, Plaintiff Chavez, Galindo, and W.C.’s, substantive allegations amount to nothing more than an incident of a past injurious event and the speculative allegation that unlawful ICE agents will return to violate their constitutional rights again. Id. (stating equitable relief is not available absent a showing "plaintiff[s] will be wronged again."). Plaintiffs’ own objective evidence renders their allegations insufficient to confer standing. See FAC ¶ , Exhibits C and D. Furthermore, Fed.R.Civ.P. 65(d) prevents the entry of the broad injunction that they seek.
Therefore, plaintiffs have also failed to state claims sufficient to support the granting of injunctive relief, and that request must be dismissed. Lyons, 461 U.S. 95, 105 (“That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation . . . .”). // // //
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CONCLUSION

For the reasons set forth above, the United States defendants' motion to

dismiss should be granted. and plaintiffs’ request for injunctive relief should be

dismissed.

Dated: June 26, 2008

GREGORY G. KATSAS Acting Assistant Attorney General Civil Division

DAVID J. KLINE Director, District Court Section Office of Immigration Litigation

/s/ Gjon Juncaj GJON JUNCAJ Senior Litigation Counsel District Court Section Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 307-8514

Attorneys for the United States defendants

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GREGORY G. KATSAS Acting Assistant Attorney General Civil Division DAVID J. KLINE Director, District Court Section Office of Immigration Litigation GJON JUNCAJ Senior Litigation Counsel District Court Section Office of Immigration Litigation U.S. Department of Justice Civil Division Ben Franklin Station P.O. Box 868 Washington, D.C. 20044-0868 Tel. (202) 307-8514 gjon.juncaj@usdoj.gov

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

MARIA ARGUETA, et al., Plaintiffs, v.
IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), et al.,
Defendants.

Hon. Peter G. Sheridan No. 08-CV-01652- PGS-ES CERTIFICATE OF SERVICE

I, GJON JUNCAJ, do hereby certify that:
1. I hold the title of Senior Litigation Counsel with U.S. Department of Justice, Civil Division, and am counsel for United States defendants Immigration

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and Customs Enforcement and, as sued in their official capacities, Julie L. Myers, John P. Torres, Scott Weber, Bartolome Rodgriguez, John Doe ICE Agents 1-60, and John Soe ICE Supervisors 1-30.

2. On June 26, 2008, I caused true copies of the following documents to be filed electronically with the Court's CM/ECF system:

(1) Notice of United States Defendants' Motion To Dismiss Plaintiffs' Request For Injunctive Relief

(2) Memorandum In Support of United States Defendants' Motion To Dismiss Plaintiffs' Request For Injunctive Relief, with Exhibits 1 and 2.

(3) Proposed Order

3. I also certify that on June 26, 2008, I caused one (1) true and correct courtesy copy of the above documents to be delivered via Federal Express Service to the Honorable Peter G. Sheridan at:

Honorable Peter G. Sheridan, U.S.D.J. United States District Court, District of New Jersey King Fed. Bldg. & U.S. Courthouse 50 Walnut Street, Room 4040 Newark, N.J. 07101

I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

Dated: June 26, 2008

s/ GJON JUNCAJ GJON JUNCAJ Senior Litigation Counsel

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MARIA ARGUETA, et al.,
Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

Civil Action No.: 08-1652 (PGS)
OPINION II

Defendants.

SHERIDAN, U.S.D.J. This matter comes before the Court on Defendants, Julie Myers, John Torres, Scott Weber
and Bartolome Rodriguez’s (the “Individual Federal Defendants”) Motion to Dismiss Plaintiffs’ Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6) and 15. The Second Amended Complaint alleges civil rights violations of the Fourth and Fifth Amendments against federal officials pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against state officials pursuant to 42 U.S.C. 1983 and the N.J. Constitution, for partaking in a practice of unlawful and abusive raids of immigrant homes.

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I. PROCEDURAL HISTORY Defendants previously moved on similar grounds to dismiss the First Amended Complaint.
On May 6, 2009, the Court granted in part and denied in part Defendants’ motion to dismiss the First Amended Complaint. As to the Individual Federal Defendants, the Court denied their motion to dismiss on qualified immunity grounds and ordered limited discovery to take place. On May 20, 2009, the Individual Federal Defendants filed a motion for reconsideration of the Court’s May 6, 2009, Order. On June 8, 2009, while the Motion for Reconsideration was pending, Plaintiffs filed their Second Amended Complaint against all defendants. On June 18, 2009, the Individual Federal Defendants moved to dismiss Plaintiffs’ Second Amended Complaint. Because the Individual Federal Defendants’ Motion for Reconsideration was pending at the time Plaintiffs filed their Second Amended Complaint, the Court will incorporate those arguments into the Individual Federal Defendants’ Motion to Dismiss.
The Individual Federal Defendants raise the following arguments in support of their motion to dismiss: (1) that the doctrine of qualified immunity bars all of Plaintiffs’ claims against them; (2) that the Court lacks personal jurisdiction over two Washington D.C. based defendants, Myers and Torres; (3) that the Court lacks subject matter jurisdiction over the case. The Court’s prior May 9, 2009, ruling denied Defendants’ motions to dismiss based upon both personal and subject matter jurisdiction. The Second Amended Complaint has not raised any new or different jurisdictional issues. The Individual Federal Defendants’ Motion to Dismiss based upon personal jurisdiction and subject matter jurisdiction are denied for the reasons stated in the Court’s previous Opinion.
The Individual Federal Defendants’ current Motion to Dismiss, and Motion to Reconsider the Court’s prior ruling, raise the U.S. Supreme Court’s recent decision in Ashcroft v. Iqbal, 129
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S.Ct. 1937 (2009). The Iqbal decision was released after the Court’s prior decision and before Plaintiffs filed their Second Amended Complaint. As such, the Court will reexamine the Individual Federal Defendants’ argument that the doctrine of qualified immunity bars this suit based upon the Iqbal decision.
The First Amended Complaint involved thirteen Plaintiffs, five of whom wished to proceed anonymously due to alleged fears of retaliation based on their immigration status. The Court dismissed all claims brought by the anonymous Plaintiffs subject to their right to amend the Complaint to include their identities. Thereafter, Plaintiffs filed the Second Amended Complaint identifying one of the five anonymous Plaintiffs. II. STATEMENT OF FACTS
The Court’s May 6, 2009 Opinion recites in detail the facts of the case. Thus, the facts will not be restated at length herein.
The claims of each plaintiff are strikingly similar. In each case, Plaintiffs allege that United States Immigration and Customs Enforcement (ICE) agents entered their home in the early morning hours without appropriate consent and/or warrants.1 The ICE agents had administrative arrest warrants, which did not authorize entry into a residence absent consent. Plaintiffs allege they were “all victims of these unconstitutional home raid practices.” ICE agents allegedly “gained unlawful entry, through deceit, or in some cases, raw force” and subjected Plaintiffs to “physical or verbal abuse.” The individual allegations for each Plaintiff were set forth in detail in the Court’s previous
1 One case is not similar One plaintiff, Maria Argueta, did not allow the officers into her apartment immediately. As a result, the officers spoke with her landlord/brother. In turn, the landlord/brother persuaded plaintiff to allow the officers into her apartment. The issue with respect to the validity of consent may need further examination after discovery is complete.
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Opinion. The Court’s instant inquiry is focused on allegations concerning the Individual Federal Defendants. A brief recitation of the facts relevant to the Individual Federal Defendants is instructive.
A. Operation Return to Sender (ORTS) In 2002, INS instituted a National Fugitive Operations Program. About a year later, in the aftermath of 9/11, INS was subsumed into the Department of Homeland Security (DHS), and DHS continued the Program.2 From 2002 onward, the number of fugitive aliens in the country rose rapidly. In 2006, there were 623,000 fugitive aliens. In order to address this concern, DHS increased the number of Fugitive Operation Teams (FOTs) nationwide to fifty and dramatically increased the target numbers of arrests for each FOT. In May 2006, DHS launched ORTS, which combined the resources of the prior program with those of other state and local law enforcement agencies in order to effectuate an “organized and methodical approach to the identification, location, and arrest of ICE fugitive aliens.”3 As noted, ORTS focuses on fugitive aliens. Fugitive aliens are non-United States citizens not currently in the custody or control of ICE who have failed to depart the United States pursuant to a final order of removal, deportation or exclusion, or have failed to report to a DRO [Office of Detention and Removal Operations] officer after receiving notice to do so.” (OIG Report at 2.) Under ORTS, officials conduct their investigations by “focus[ing] their efforts on specific

2

See Department of Homeland Security, Office of Inspector General, “An

Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations

Teams,” OIG-07-34 (Mar. 2007). (Second Am. Compl. Ex. C (“OIG Report”) at 1.)

3

See Letter of Myers to Christina DeConcini of the Nat’l Immigration Forum,

dated July 6, 2007. (Second Am. Compl. Ex. D (“Myers Letter”).)

4

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fugitive aliens at specific locations; that is, by prioritizing fugitive aliens by those who (1) are a threat to national security, (2) pose a threat to the community, (3) were convicted of violent crimes, (4) are convicted felons, and (5) are non-criminal fugitives”. (Myers Letter at 2). The basic unit of enforcement is a FOT. In order to accomplish their goal of identifying, arresting, and removing fugitive aliens, “FOTs use leads and other intelligence based information.” (Id. at 1.) Such information is “gathered through law enforcement channels,” and once it locates several fugitives in the same vicinity, the FOT “develop[s] an operational plan for the swift and safe arrest of the fugitive aliens in the most fiscally efficient way.” (Id.)
The arrest of fugitive aliens is tricky due to the nature of the warrant issued. The procedure to obtain a warrant for removal is straightforward. An order of removal is issued by an immigration judge after a hearing. Upon receiving such an order, DRO issues a Warrant of Deportation/Removal. (Id. at 2.) These warrants are administrative in nature, as opposed to judicial, and are unlike arrest warrants. An arrest warrant allows police officers to enter a residence to arrest a person while the warrant of removal allows arrest, but it does not permit entry into a home. Officers must “obtain consent before they are permitted to enter private residences.” (Id.) DHS recognizes that “warrants of removal do not grant the same authority to enter dwellings as a judicially approved search or arrest warrant.” (Id.)
Ancillary to their authority to arrest based upon a warrant of removal is an ICE agent’s authority to question any person about their immigration status. 8 C.F.R. § 287.5(a)(1). However, an officer may only detain an individual for further questioning if the officer has “reasonable suspicion that the individual has committed a crime, is an alien who is unlawfully present, is an alien with status who is either inadmissible or removable from the United States, or is a non-immigrant
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who is required to provide truthful information to DHS upon demand.” (Myers Letter at 2) (citing 8 C.F.R. § 214.1(f)).
In order to obtain knowing and voluntarily consent from a dwelling’s occupants, FOTs utilize interpreters during operations. According to their standard practices, the interpreter requests permission to enter a residence, and if so granted, agents enter and secure the premises in order to ensure officer safety. (Id.)
After the search and the arrest occurs, if any, and according to policy, the family members are provided a telephone number to call in order to locate the arrested. In addition, arrestees are afforded an opportunity to make a telephone call and to acquire legal services. (Id.)
B. The Individual Federal Defendants The Individual Federal Defendants are Julie Myers, in her prior capacity as the Assistant Secretary for Homeland Security for ICE in Washington, D.C. at all relevant times prior to November 15, 2008; John Torres, Acting Deputy Assistant Secretary for Operations of ICE, and at all relevant times prior to March 5, 2008, the Director (or Acting Director) of the ICE Office of Detention and Removal Operations (DRO) in Washington, D.C.; Scott Weber, Director of the DRO Field Office in Newark, and Bartolome Rodriguez, former Acting Field Office Director for the DRO Field Office in Newark. Plaintiffs allege that the ORTS program “exponentially increased quotas for the arrest of immigrants” through the use of pre-dawn raids. Plaintiffs allege that the Individual Federal Defendants, despite knowledge of the “unconstitutional and abusive conduct” allowed the ORTS program to continue unabated. More specifically, Plaintiffs maintain that these Individual Federal Defendants should have “develop[ed] meaningful guidelines or oversight mechanisms . . . provide[d]
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. . . adequate training . . . or otherwise ensured accountability” that ORTS operated within
constitutional confines.
Specifically, Plaintiffs allege that
Despite aggressively increasing the arrest quotas and the number of agents participating in “Operation Return to Sender,” and thereafter being notified–via press reports, law suits, and congressional testimony–of the widespread allegations of unconstitutional and abusive conduct by ICE agents as part of this program, the DHS supervisory officials named in this Complaint have continued to foster an institutional culture of lawlessness. Specifically, they have failed to develop meaningful guidelines or oversight mechanisms to ensure that home arrests are conducted within constitutional limits, to provide the agents involved with adequate training (or for some newer agents, any training) on the lawful execution of fugitive operations, or otherwise ensured accountability for the failure to conduct fugitive operations within constitutional limits. On the contrary, on many occasions, DHS supervisory officials have proudly publicized the increasing number of arrests made as a result of the unconstitutional raids that continued to be carried out in the shadows and the dark of the night.
(Second Am. Compl. ¶ 5.)
Plaintiffs allege that Myers and Torres “oversaw the implementation of a five-fold increase
in the number of Fugitive Operations Teams in the two-year period between 2005 and 2007.”
(Second Am. Compl. ¶ 144.) Additionally, Myers and Torres allegedly “approved a remarkable
800% increase in the arrest quota of each team in the corresponding period of time without providing
the necessary training to prevent ICE agents . . . from acting abusively and unlawfully.” (Id. ¶ 144.)
Plaintiffs allege that both Myers and Torres were “repeatedly placed on notice of the routine
unconstitutional home-raid practices by ICE agents” through both the media and by law suits
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involving themselves.4 (Id. ¶ 145; ¶143 nn. 6-23.) Plaintiffs further allege that Myers in responding to these allegations “acknowledged that
only five of the 29 individuals arrested were fugitives. She similarly acknowledged that agents conducting residential searches and arrests routinely do not have judicially-issued warrants, and are therefore required to obtain knowing, voluntary consent before entering a home.” (Id. ¶ 146.) Torres allegedly was directly responsible for executing fugitive operations within ORTS. (Id. ¶ 147.) Plaintiffs allege that Torres “was specifically notified of unconstitutional home raid practices by officers under his supervision in New Haven, Connecticut.” Plaintiffs allege that “New Haven’s mayor called defendant Torres in June 2007 . . . about allegations that defendant Torres’s officers ‘barged into houses without warrants and verbally abused the people and children were manhandled.’” (Id.) Plaintiffs assert that despite being aware of the unconstitutional practices by ICE agents, Myers and Torres “have not conducted any meaningful investigations into the practice . . . Nor have they, upon information and belief, meaningfully disciplined any officer responsible for such unconstitutional conduct.” (Id. ¶ 148.) Finally, Plaintiffs allege that defendants “contributed to such unlawful conduct by continuing to publicize, and laud as ‘successful,’ their department’s dramatic increase in immigration arrests over the past two year.” (Id.)
Rodriguez and Weber were Directors of the Newark DRO field office during the relevant time period and allegedly “were each directly responsible for overseeing fugitive operations and the execution of [ORTS] in New Jersey,” including directing the searches of the residences. (Id. ¶ 149.)
4 Although newspaper articles are generally considered hearsay, see Barnes Found. v. Township of Lower Merion, 242 F.3d 151, 163 n.8 (3d Cir. 2000), in this case the articles show the Individual Federal Defendants had notice of the controversy. As such, the articles are used during the pleading stage only to show notification. See Marsee v. U.S. Tobacco Co., 866 F.2d 319, 325 (10th Cir. 1989).
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Plaintiffs allege that both defendants made “frequent reports and comments on the number of arrests made by ICE agents, and speaks publicly on behalf of ICE about the implementation of [ORTS] in New Jersey.”5 III. QUALIFIED IMMUNITY AND IQBAL V. ASHCROFT
This Court previously ruled that it was premature to deny the Individual Federal Defendants’ qualified immunity defense. The Court ordered limited discovery of the Individual Federal Defendants (a deposition and interrogatories to each).
The Individual Federal Defendants submit that the Supreme Court’s Iqbal decision is a substantial change in law that should alter the Court’s earlier qualified immunity analysis. Defendants argue that Iqbal made clear that “‘because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the officials’ own individual actions, has violated the Constitution.” (Defs. Reply at 1 (citing Iqbal, 129 S.Ct. at 1948).) Although the Individual Federal Defendants argue that Iqbal entirely did away with supervisory liability in civil rights cases under all circumstances, their conclusion is suspect.
The Individual Federal Defendants argue that in Iqbal the Supreme Court held that Government officials may not be vicariously liable under a theory of respondeat superior, 129 S.Ct. at 1948, and as such there is no liability here. However, this Court in its previous Opinion, along with many other courts, held that there was no vicarious liability based upon respondeat superior
5 Plaintiffs allege that during one media interview Weber was presented with “specific allegations regarding a pattern of home raids in New Jersey conducted without search warrants or consent, and he responded: ‘I don’t see it as storming a home . . . . We see it as trying to locate someone.’” (Id. ¶ 149.) This is a hearsay statement in a newspaper, which is inadmissible when offered to prove the truth of the matter asserted, but here is used to demonstrate notice to the defendants. See Barnes Found., 242 F.3d at 163 n.8; Marsee v. U.S. Tobacco Co., 866 F.2d at 325.
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under Bivens. Additionally, the Supreme Court made it clear that “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” Id. In Iqbal, the plaintiff brought claims for invidious discrimination in violation of the First and Fifth Amendments, and the Court held that under a discrimination theory the plaintiff “must plead and prove that the defendant acted with discriminatory purpose.” Plaintiffs here do not allege invidious discrimination, but rather violations of their Fourth Amendment rights.6 Thus, Plaintiffs’ pleadings must be analyzed under the appropriate Fourth Amendment standards.
In the previous Opinion, it made clear that “[i]n order to overcome qualified immunity, a plaintiff must allege facts to show that an individual defendant had personal involvement in the alleged wrongdoing. Liability cannot be based on the theory of respondeat superior.” The Supreme Court in Iqbal affirmed this approach to Bivens claims. The Individual Federal Defendants primary contention lies with the Court’s determination that “personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted). The Individual Federal Defendants submit that under Iqbal there are no situations where “actual knowledge or acquiescence” may sustain a Bivens claim for violation of any unconstitutional conduct. The Court does not agree. The Supreme Court did not make such a broad pronouncement in Iqbal. The Supreme Court held that
6 One plaintiff alleges a claim under equal protection which is addressed below. 10

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[a]bsent vicarious liability, each Government official, his or her title nonwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. Iqbal, 129 S.Ct. at 1949. As is clear from the language above, the Court’s focus on “purpose” rather than “knowledge” is significant as it relates to the claim at issue in Iqbal. There plaintiff claimed unconstitutional discrimination, which requires that plaintiff must plead and prove each defendant acted with “discriminatory purpose.” The Fourth Amendment does not require proof of “discriminatory purpose.” Here, Plaintiffs allege that the Individual Federal Defendants had actual knowledge, initiated, and directed their subordinate agents to go beyond the limits of their non-judicial warrants in violation of Plaintiffs’ Fourth Amendment rights to be free from illegal searches and seizures. Further, the Supreme Court in Iqbal clarified and affirmed its previous decision with respect to pleading standards in Twombly. See id. at 1949 (citing 550 U.S. 544 (2007)). In both Iqbal and Twombly, the Court held that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing 550 U.S. at 570). The Iqbal Court did not change the pleading standards as applied by the lower courts. Moreover, the pleadings in Iqbal are distinguishable from the instant facts before this Court. The plaintiff in Iqbal alleged that the FBI under the direction of defendant Director Mueller arrested and detained thousands of Arab and Muslim men as part of the investigation into the September 11th attacks. See id. at 1951. Plaintiff further alleged that along with defendant Ashcroft, former
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Attorney General of the United States, the two defendants held post-September 11th detainees in “highly restrictive conditions of confinement” and “purposefully” designated plaintiff a detainee of “high interest” because of his race, religion, or national origin. Thus, plaintiff was making conclusory allegations against two of the highest-level officers in the Government for actions taken in the immediate aftermath of the events of September 11th. The Supreme Court further remarked that “[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.” Id. at 1951. The Court found it more plausible that the actions of the FBI Director and Attorney General were based upon a “nondiscriminatory intent” and that plaintiff had failed to plead actual discriminatory purpose, as required for a discrimination claim under the First or Fifth Amendment.
It is important to note that the Supreme Court in Iqbal distinguished its case from the type of case presently before this Court. While finding that the pleadings were insufficient to overcome qualified immunity, the Supreme Court held:
It is important to recall that respondent’s complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC. Respondent’s constitutional claims against petitioners rest solely on their ostensible “policy of holding post-September 11th detainees” . . . once they were categorized as “of high interest.” To prevail on that theory, the complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying postSeptember 11 detainees as “of high interest” because of their race, religion, or national origin. “Purposeful discriminatory intent” because of “race, religion, or national origin” is not an element of a Fourth Amendment claim. Here, Plaintiffs’ claims for federal officials’ violations of
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their Fourth Amendment right to be free from unreasonable searches and seizures is an ordinary claim that is properly before this Court.7 In this Court’s view, Iqbal does not hold that a plaintiff to adequately plead a Bivens Fourth Amendment claim must allege more than required to show a violation of the fundamental constitutional right alleged. Several post-Iqbal cases have made this important distinction. See Chao v. Ballista, 630 F. Supp. 2d 170, 178 (D. Mass. 2009) (“Notably, the state of mind required to make out a supervisory claim under the Eighth Amendment-i.e., deliberate indifference-requires less than the discriminatory purpose or intent that Iqbal was required to allege in his suit against Ashcroft and Mueller.”); Morales v. Grondolsky, Civ. Action No. 08-2969, 2009 WL 1545841 at *4 (D.N.J. May 29, 2009) (“[T]here is no vicarious liability in Bivens actions; ‘a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’”
As noted above, Iqbal made clear that “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” 129 S.Ct. at 1948. Thus, the Individual Federal Defendants’ assertion that Iqbal now stands for the proposition that “knowledge and acquiescence” are insufficient to allege a Bivens claim is misplaced. As the U.S. Supreme Court stated, it will be a contextual analysis and will depend on the constitutional provision at issue. Therefore, the question before this Court has not changed since the Supreme Court’s Iqbal decision: Does Plaintiffs’ Second Amended Complaint adequately allege a Fourth Amendment claim against the Individual Federal Defendants?
7 One Plaintiff, Ontaneda, alleges a claim under the Fifth Amendment based on equal protection of the law. He alleges that his arrest was effectuated based upon his race and ethnicity. Plaintiffs concede that Iqbal affects this particular claim. (Pls. Mem. Opp. 9 n.4.) There is no direct evidence of any purposeful discrimination by the Individual Federal Defendants. Thus, this claim is dismissed.
13

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In Iqbal, the Court cautioned that plaintiff was suing the “highest level of the federal law enforcement hierarchy.” 129 S.Ct. At 1943. This is not the case here. Additionally, unlike in Iqbal, the Individual Federal Defendants were not urgently reacting in the immediate aftermath of a terrorist attack. The alleged acts being challenged occurred pursuant to more aggressive immigration policies undertaken over a two year period. The Individual Federal Defendants in this suit are alleged to have directly initiated the unconstitutional home raid practices at issue. As to Myers and Torres, Plaintiffs allege that they directly implemented the specific ORTS program being challenged in this case (Second Am. Compl. ¶¶ 2-5, 19-20.) Myers and Torres oversaw an 800 % increase in arrests quotas as a direct result of their alleged home raids policies. (Id. ¶¶ 30, 144.) Plaintiffs allege that Myers and Torres did nothing to investigate or stop the unlawful practices despite being made aware through lawsuits, congressional inquiries, repeated national media reports and other sources.” (Id. ¶ 148.) Plaintiffs cite to dozens of articles in national and local newspapers documenting the alleged unlawful ICE immigration raids (id. ¶¶ 41, 45, 140, 143) as well as comments by the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law concerned with the ICE home-raid procedures (id. ¶ 46). Further, Plaintiffs allege that the numerous press reports and comments made by the ICE office and Myers directly contributed to the alleged unlawful conduct by lauding as successful the “dramatic increase in immigration arrests.” (Id. ¶148.) Additionally, Plaintiffs allege that the Mayor of New Haven, Connecticut, directly informed Torres of the unlawful activity of the agents and recommended that ICE discontinue the ongoing home arrest practices. (Id. ¶ 147.)
On another note, Julie Myers and John Torres require some further comment because it is necessary to refrain from lawsuits that are not prescribed by Congress, and expending time by such
14

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111333555              FFFi il leeeddd     000111/ /222777/ /111000              PPPaaagggeee     111555     ooof f     111999     PPPaaagggeeeI IDDD: :     111888000444
high-level officials on such issues may undermine national policy. In Iqbal the claim framed before the Supreme Court challenged “the prospect of subjecting high-ranking government officials–entitled to assert the defense of qualified immunity and charged with responding to a national and international security emergency unprecedented in the history of the American Republic–to the burdens of discovery on a basis of a complaint as nonspecific as respondents.” 129 S.Ct. at 1945. Here, the facts are different. The complaint sets forth numerous allegations about the searches, and there is no doubt that Myers and Torres had sufficient knowledge of how the searches were being conducted. Myers and Torres worked on these issues everyday. A noted above, this is far different than what was alleged against Ashcroft and Mueller, where there were few, if any, concrete facts alleged. In addition, since Myers and Torres are two or three position levels below the Secretary of Homeland Security, everyday experience corroborates that they have more knowledge of the practices in the various states. In this case, Torres and Myers wrote the policy, implemented it, and monitored its progress. This is a significant difference from the Attorney General and Director of FBI who are concerned about national policy. Overall the repercussions of Myers and Torres participating in litigation in light of their knowledge is not onerous.
With respect to Rodriguez and Weber, Plaintiffs allege that as directors of the Newark field office they were directly responsible for overseeing the operations and for executing the ORTS mandates in New Jersey. (Id. ¶ 149.) Plaintiffs allege that both defendants made specific comments to the media that emboldened alleged unconstitutional practices and that they ignored specific allegations of unlawful activity. (Id.) As to the Individual Federal Defendants as a group, Plaintiffs allege that they “participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk
15

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111333555              FFFi il leeeddd     000111/ /222777/ /111000              PPPaaagggeee     111666     ooof f     111999     PPPaaagggeeeI IDDD: :     111888000555
that ICE officers, lacking clear training and under the pressure of sharply-increased quotas, would violate the Fourth Amendment rights of individuals . . .” (Id. ¶ 157.)
Under Iqbal, “a claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 129 S.Ct. at 1940. In order to determine whether the complaint sets forth sufficient factual content, the court may not accept “threadbare recitals of a cause of action’s elements;” and more importantly, the reviewing court must “draw on its experience and common sense” that the complaint alleges a “context-specific” plausible claim. Id. at 1940-41.
Contrary to the argument of the Individual Federal Defendants, there are sufficient factual allegations set forth in the Complaint for the Court, in applying its experience and common sense, to conclude that there is a plausible claim against each Individual Federal Defendant that their personal involvement, direction and knowledge or acquiescence permitted a search of the residence of plaintiffs without consent in violation of the Fourth Amendment.
Generally, the doctrine of qualified immunity shields government officials in their individual capacities from the entirety of the litigation process where “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). It is a twofold test. The first prong is to determine whether their conduct violated clearly established constitutional rights. In this regard, plaintiffs allege there was no consent given to the officers, and the officers entered without permission or possession of an appropriate judicial warrant. In this case, the Individual Federal Defendants “must know about the conduct, and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.” Williams v. Fort Wayne Police Dept., No. 1:08-CV-152 RM, 2009 WL 1616749,
16

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111333555              FFFi il leeeddd     000111/ /222777/ /111000              PPPaaagggeee     111777     ooof f     111999     PPPaaagggeeeI IDDD: :     111888000666
at *4 (N.D. Ind. June 9, 2009); see also Iqbal, 129 S.Ct. at 1958 (2009) (Souter, J., dissenting) (noting the different tests for supervisory liability).
In this case, the Individual Federal Defendant’s knew the officers had no legal warrants that allowed entry into private residences. The Return to Sender program acknowledged that “warrants of removal do not grant the same authority to enter dwellings as a judicially approved search or arrest warrant.” For certain, the Individual Federal Defendants knew that entry into the residences could only occur with consent by the plaintiffs. Here, each plaintiff alleges consent was withheld. Moreover, there were numerous newspaper articles giving notice of the brash home entries8 and a discussion with the Mayor of Hartford about the intrusiveness of the entries. At the very least, the complaint alleges that each gave a “blind eye” to the issue, and allowed non-consenting searches to be conducted without correction. In short, it is plausible that an allegedly unreasonable search was conducted as set forth in the Complaint.
Secondly, the constitutional right violated must be one of which a reasonable person would have known. Clearly, the high-level Individual Federal Defendants knew that a search was only allowed with consent, and the agents intrusive entry in early morning hours with officers screaming at plaintiffs did not allow for the clear-thinking consent as required under the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973) (holding that the Fourth Amendment requires that the government “demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances . . . .”).
8 Based upon my government experience and common sense, each Individual Federal Defendant most likely received and read news clips regularly, including those cited in the Complaint.
17

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111333555              FFFi il leeeddd     000111/ /222777/ /111000              PPPaaagggeee     111888     ooof f     111999     PPPaaagggeeeI IDDD: :     111888000777
Accepting as true the allegations set forth in the Second Amended Complaint, the Court finds the allegations sufficient at this stage “to state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. 1949 (citing Twombly, 550 U.S. at 570). Plaintiffs have alleged sufficient facts demonstrating that the Individual Federal Defendants “set in motion a series of events” that resulted in the deprivation of Plaintiffs’ Fourth Amendment rights. Padilla v. Yoo, 633 F.Supp.2d 1005, 1036, (N.D. Cal. 2009). In Padilla, the plaintiff alleged that Yoo had helped created the legal policies that led to violations of his constitutional rights. In denying Yoo’s request for qualified immunity, the Court compared the facts to Iqbal, where the Supreme Court “rejected that ‘bare assertions’ in a complaint that high-ranking government officials knew about unconstitutional treatment and therefore caused it are not entitled to ‘the assumption of truth.’” Id. In Padilla, the court held that Padilla “alleges with specificity that Yoo was involved in the decision to detain him and created a legal construct designed to justify the use of interrogation methods that Padilla alleges were unlawful.” Id. The Padilla Court held that “federal officials were cognizant of the basic fundamental civil rights afforded to detainees under the United States Constitution” and because the legal rights were not in doubt, the federal officials’ alleged knowledge and involvement in directing the policy were sufficient to overcome qualified immunity at the pleading stage. Id. at 1037. The Court finds this particularly instructive. Similarly, there are no novel legal issues here. Plaintiffs allege that the Individual Federal Defendants and their subordinates, armed with only administrative warrants in hand that did not authorize entry without consent, violated plaintiffs’ rights to be safe from unreasonable searches and seizures under the Fourth Amendment. This is an ordinary, wellprotected, and significant legal right under our Constitution, and is appropriately brought before this Court.
18

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IV. CONCLUSION The Individual Federal Defendants’ Motion to Dismiss the Second Amended Complaint
based upon qualified immunity is denied except with respect to plaintiff Ontaneda’s equal protection claim which is dismissed.
In conclusion, the motion for dismissal based upon qualified immunity is denied without prejudice.

January 27, 2010

s/Peter G. Sheridan PETER G. SHERIDAN, U.S.D.J.

19

 
 !aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111777333              FFFi il leeeddd     000666/ /000222/ /111000              PPPaaagggeee     111     ooof f     333     PPPaaagggeeeI IDDD: :     222999111222 Cac 2Odcv-O1F52 F CS Docurnont 17 1 FliEd O6/O2’1O Page 1 of 3

Baher Azm Seton Hall School of Law Center fir Social Justice 833 NicCarter l-iighav Ne\\ark. NJ 07102-5210 (973) 632-8709 Aflornevs for I’/u/n!iffs
R. Scott Thompson Scott L. Walker Natalie J. Kraner Heather C. Rishop Loenstein Sandier PC 65 Livingston Avenue Roseland, NJ 07068 (973) 597-2500 A tiornevsfir I’1ain1i//

UNITED STATES I)ISTRICT COURT FOR TIlE DISTRICT OF NEW JERSEY

MARIA ARGUETA: WALTER ChAVEZ: ANA GALINDO: W.C. by and through his parents Walter Chavez and Ana Galindo: ARTURO FLORES; I3YBYANA ARIAS: JUAN ONTANEDA: VERONICA COVIAS; and YESICA GUZMAN.
Plaintiffs,

DOCUMENT FILED ELECTRONICALLY
Honorable Peter G. Sheridan, U.S.D.J. honorable Esther Salas, U.S.MJ.

UNiTED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); JOHN MORTON. Assistant Secretary for 1mm igrat ion and Customs En forcement: JULIE L. MYERS. Former Assistant Secretary for Immigration and Customs Enforcement: ALONZO R. PENNA. Deputy Assistant Director for Operations. Immigration and Customs Enforcement: JOl IN P. TORRES. Former Deputy Assistant Director fbr Operations. Immigration and Customs Enforcement: SCOTT WEBER. I)irector. 001cc of Detention and Remo al Operations. Ne ark Field Office: [3ARTOLOME RODRIGI. EZ. Former Director. Office f Detention and Removal Operations. Ne ark Field Office; AGENT I, AGENT 2, AGEN1 3, AGENT 3. AGENT 5. AGENT 6. AGENT 7, AGENT 8. AGENT

Civil Action No: 2:08-cv-1652
CONSENT ORI)ER ON SERVICE OF SUMMONSES AND
THIRI) AMENDEI) COMPLAINT ON AGENTS 1-8 and 10-3 1

21lS’ 2 (i6 01 2(1 () 14430051 2

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111777333              FFFi il leeeddd     000666/ /000222/ /111000              PPPaaagggeee     222     ooof f     333     PPPaaagggeeeI IDDD: :     222999111333

9. AGENT 10, AGENF 11. AGENT 12, AGENT 13. AGENT 14. AGENF 15. AGENT 16, AGENT 17, AGENT 18, AGENT 19, AGENT 20, AGENT 21. AGENT 22. AGENT 23, AGENT 24, AGENT 25, AGENT 26, AGENT 27, AGENT 28, AGENT 29, AGENT 30, AGENT 31: JOHN DOE ICE AGENTS 118; JOHN SOE ICE SUPERVISORS 1-15: Penns Groe Police Officers Carmen Hernandez, Jason Spera. and Joseph DiCarolis (sued in their Individual Capacities),
I)efendants.
THIS MATTER having been commenced by plaintiffs Maria Argueta. Walter
Chavez. Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, Arturo
Fiores, Bybyana Arias, Juan Ontaneda, Veronica Covias. and Yesica Guzman, by and through
their attorneys, Lowenstein Sandier PC and the Seton hail School of Law Center for Social
Justice, by way of Third Amended Complaint against defendants Agents 1-3 1; and counsel for
defendants Agents 1-8 and Agents I03I having been served on May 27. 2010 via Federal
Express with the Third Amended Complaint and Summonses for Agents 1 -8 and Agents 10-3 I;
and counsel for defendants Agents 1-8 and Agents 1 0-31 having agreed to accept service in this
manner on behalf of their clients;

IT IS on this

day of June 2010;

ORDERED that service will be deemed to have been effectuated upon defendants Agents 1 -8 and Agents 10-3 I in the above-captioned action as of the date of service upon their counsel on May 27, 2010.

I lonorable Peter Sheridan, U.S.Di.

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111777333              FFFi il leeeddd     000666/ /000222/ /111000              PPPaaagggeee     333     ooof f     333     PPPaaagggeeeI IDDD: :     222999111444 Case 2:08cvM1 652-PG SES Document I 72l Filed 06/02/i 0 Page 3 of 3

The undersigned hereby consent to the form and entry of the above Consent Order.

TONY WEST Assistant Attorney General TIMOTHY P. GARREN Director. Torts Branch. Civil [)ivision MARY HAMPTON MASON Senior Trial Counsel EDWARD J. MARTIN SARAH E. WHITMAN Trial Attorneys Torts Branch, Civil Division U.S. Department of Justice P.O. Box 7146 Ben Franklin Station Washington, D.C. 20044 (202) 616-0089 A Itorneys for Defendants Agents I3 I
By: /s/ Edward J. Martin

Baher Azmv Mark Noferi L. [)an id Ic Tu liv Seton hail School olLaw Center lbr Social Justice 833 McCarter Highway Newark, NJ 07102-5210 (973) 642-8709
R. Scott Thompson Scott L. Walker Natalie J. Kraner Heather C. Bishop Lowenstein Sandier PC 65 Livingston Avenue Roseland, NJ 07068 (973) 597-2500 .4/bract’s/or PIainbi//
By: /s/ Natalie J. Kraner

—

 
 Case 3:08-cv-01652-PGS-DEA Document 275 Filed 09/07/11 Page 1 of 2 PageID: 5382 Case 3:08-cv-01652-PGS -DEA Document 274 Filed 09/02/11 Page 1 of 2 PagelD: 5380

UNITEL) STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MARIA ARGUETA: et al.,

vs

-

-

Plaintiffs.

DOCUMENT FILED ELECTRONiCALLY
Civil Action No: 3 :08—cv- I 652 (PGS )( DEA)

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Ct al.,

STIPULATION OF DISMISSAL

Defendants.

IT IS HEREBY STIPULATED AND AGREED by and between the

undersigned counsel for the parties in the above-entitled action that (1) the claims asserted by

Plaintiff Veronica Tobias, incorrectly pled as Veronica Covias, are hereby dismissed without

prejudice, and (2) Plaintiff Veronica Tobias, incorrectly pled as Veronica Covias, and Defendant

ICE Agents 10, 24, and 31 are hereby dismissed from this action without prejudice. This

dismissal does not affect any claims brought by Plaintiffs other than Plaintiff Veronica Tobias

(incorrectly pled as Veronica Covias). Each party shall bear his/its own costs and attorneys’

fees.
Baher Azmy Barbara Moses Seton Hall School of Law Center for Social Justice 833 McCarter Highway Newark, NJ 07102-5210 973) 642-8709
R. Scott Thompson Catherine Weiss

3O

F3.ATED:
Melanie S. Keiper

7,” i

Nicole Prairie

U.S. Department of Justice

Office of Immigration Litigation

District Court Section

P.O. Box 868

I3en Franklin Station

Washington. DC 20044

(202) 532-4112

(202) 305-7000 (facsimile)

2

Case 3:08-cv-01652-PGS-DEA Document 275 Filed 09/07/11 Page 2 of 2 PageID: 5383 Case 3:08-cv-01652-PGS -DEA Document 274 Filed 09/02/11 Page 2 of 2 PagelD: 5381

Scott L. Walker Heather C. Bishop Aurora F, Parrilla Lowenstein Sandier PC 65 Livingston A\enue Roseland, NJ 07068 (973) 597-2500
.4ttornevs for Plaintiffc
By: ts/Heail;er C. Bishop
I)ated: September 1, 2011

Arrornev.c for tjnited States Defendants in their olficial capacities
By: /s/ Melanie S. Keiper
Dated: September I, 2011
Edward J. Martin Zachary C. Richter Sarah E. Whitman United States Department of Justice, Civil Division P.O. Box 7146, Ben Franklin Station Washington. D.C. 20044 (202) 616-0089 (202) 616-4314 (facsimile)
Jesi J. Carison United States Department of Justice, Civil Division P.O. l3ox 868, Ben Franklin Station Washington, D.C. 20044 (202) 305-7037 (202) 305-7000 (facsimile)
Attorneys for Defendant ICE Agents 1-8, 10-31 in their individual capacities
By: /s/Zachary C. Rich/er
Dated: September 1, 2011

 
 Case 3:08-cv-01652-PGS-DEA Document 281 Filed 09/21/12 Page 1 of 1 PageID: 5401

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Maria Argueta, et al
Plaintiffs,
v.
Julie 1. Myers, et al
Defendants.

Civil Action No. 08-cv-1652 (PGS) ORDER

WHEREAS, this matter having come before the Court, and the parties having amicably resolved the matter and
IT IS on this 21 51 day of September, 2012, ORDERED that the matter be and hereby is dismissed with prejudice and without costs, except any party may reopen for good cause shown within sixty days. The court retains jurisdiction over the agreement to enforce the terms.

PETER G. SHERIDAN, V.S.D.J.

 
 !aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     111     ooof f     555888     PPPaaagggeeeI IDDD: :     111

Baher Azmy Bassina Farbenblum Scott Michelman Seton Hall School of Law Center for Social Justice 833 McCarter Highway Newark, NJ 07102-5210 (973) 642-8709 Attorneys for Plaintiffs

R. Scott Thompson Scott L. Walker Heather Bishop Lowenstein Sandler PC 65 Livingston Avenue Roseland, N.J. 07065 (973) 597-2500 Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3, and CARLOS ROE 4,

Civil Action No.

Plaintiffs, -vs-

JULIE L. MYERS, Assistant Secretary for Immigration and Customs Enforcement, JOHN P. TORRES, Deputy Assistant Director for Operations, Immigration and Customs Enforcement, SCOTT WEBER, Director, Office of Detention and Removal Operations, Newark Field Office, BARTOLOME RODRIGUEZ, Former Director, Office of Detention and Removal Operations, Newark Field Office, JOHN DOE ICE AGENTS 1-50, JOHN SOE ICE SUPERVISORS 1-25, and JOHN LOE PENNS GROVE OFFICERS 1-10

COMPLAINT JURY TRIAL DEMANDED

Defendants.

1

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     222     ooof f     555888     PPPaaagggeeeI IDDD: :     222
Plaintiffs Maria Argueta, Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, Carla Roe 1, Carla Roe 2, Carlos Roe 2, Carla Roe 3, and Carlos Roe 4 (collectively “plaintiffs”) by their attorneys, the Seton Hall School of Law Center For Social Justice and Lowenstein Sandler PC, for their Complaint allege as follows:
INTRODUCTION 1. This is a civil rights action raising constitutional claims under the Fourth and Fifth Amendment against federal officials pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against state officials pursuant to 42 U.S.C. § 1983 and the New Jersey Constitution, for their participation in a practice of unlawful and abusive raids of immigrant homes across the state of New Jersey. The practice flourished as a predictable consequence of the Department of Homeland Security (“DHS”)’s arbitrary, exponentially-increased quotas for the arrest of immigrants with old deportation orders, and amidst the escalation of a program DHS calls “Operation Return to Sender.” Under pressure from these quotas, immigration agents have regularly disregarded the obligation to secure a judicial warrant or probable cause in carrying out unlawful entries and dragnet searches of homes in which the agents only loosely suspect immigrant families may reside. 2. Plaintiffs in this case are all victims of these unconstitutional home raid practices. They include United States citizens and lawful residents. Each plaintiff was present in his or her home in the pre-dawn hours of the morning, when a team of federal agents gained unlawful entry, through deceit or, in some cases, raw force. Agents swept throughout the homes, ordered sleeping people – including, in some cases, children – out of bed, and detained the occupants without judicial warrant or other legal justification.
2

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     333     ooof f     555888     PPPaaagggeeeI IDDD: :     333
3. Some of the plaintiffs were subjected to physical or verbal abuse; others were threatened or had firearms pointed at them or pressed into their chests. At least one plaintiff was forcibly prevented from contacting counsel. At least one of them was subsequently arrested despite having papers – which the arresting agents refused even to look at – reflecting her legal status. Each plaintiff has suffered and continues to suffer from the effects of that abusive conduct.
4. Plaintiffs’ experiences are typical of the “Operation Return to Sender” home raid modus operandi throughout the state and the nation, which has been comprehensively documented through media reports and first-hand accounts from other victims. The execution of these raids in New Jersey illustrates how “Operation Return to Sender” has extended far beyond its stated goal of apprehending individuals with outstanding deportation orders – persons Immigration and Customs Enforcement (“ICE”) calls “fugitives.” ICE statistics reveal that as few as one in three individuals arrested in “Operation Return to Sender” in New Jersey is actually a “fugitive” in alleged violation of a deportation order. Instead, the large majority – euphemistically called “collateral arrests” – are individuals merely swept up in the recent dragnets. Agents regularly raid homes where the purported “fugitive” target is not present, and could not reasonably have been believed to have been present. Indeed, according to a recent report by DHS’s Inspector General, agents rely on data that is outdated and inaccurate in up to 50% of cases.
5. Despite aggressively increasing the arrest quotas and the number of agents participating in “Operation Return to Sender,” and thereafter being notified – via press reports, lawsuits, and congressional testimony – of the widespread allegations of
3

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     444     ooof f     555888     PPPaaagggeeeI IDDD: :     444
unconstitutional and abusive conduct by ICE agents as part of this program, the DHS supervisory officials named in this Complaint have continued to foster an institutional culture of lawlessness. Specifically, they have failed to develop meaningful guidelines or oversight mechanisms to ensure that home arrests are conducted within constitutional limits, to provide the agents involved with adequate training (or for some newer agents, any training) on the lawful execution of fugitive operations, or otherwise ensured accountability for the failure to conduct fugitive operations within constitutional limits. On the contrary, on many occasions, DHS supervisory officials have proudly publicized the increasing numbers of arrests made as a result of the unconstitutional raids that continue to be carried out in the shadows and the dark of night.
6. The Constitution constrains the actions of government officials in every domain and protects citizens and non-citizens equally from unreasonable searches, seizures, and incursions into their homes. In this action, the plaintiffs seek damages for the harm they have suffered and seek to hold responsible those who conducted, directed, and sanctioned the complained-of conduct, all of which violated clearly established constitutional protections.
JURISDICTION AND VENUE 7. This Court has jurisdiction over this federal civil rights action pursuant to 28 U.S.C. §§ 1331 & 1343(a)(3). Supplemental jurisdiction over pendant state law claims is proper pursuant to 28 U.S.C. § 1367. 8. Venue lies in this District pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims occurred here, and also under 28 U.S.C. § 1391(e)(3) because defendants include federal officers acting under color of
4

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555     ooof f     555888     PPPaaagggeeeI IDDD: :     555
legal authority, at least one of the plaintiffs resides in this district, and no real property is involved in this action.
PARTIES The Plaintiffs 9. Plaintiff MARIA ARGUETA is of Latino origin, and has held lawful Temporary Protection Status in the United States since 2001. At all times relevant to this action she was a resident of North Bergen, New Jersey. 10. Plaintiff ARTURO FLORES is of Latino origin and is a United States citizen. At all times relevant to this action he was a resident of Clifton, New Jersey. 11. Plaintiff BYBYANA ARIAS is of Latino origin and is a United States citizen. At all times relevant to this action she was a resident of Clifton, New Jersey. 12. Plaintiff JUAN ONTANEDA is of Latino origin. At all times relevant to this action he was a resident of Newark, New Jersey. 13. Plaintiff VERONICA COVIAS is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action she was a resident of Paterson, New Jersey. 14. Plaintiff CARLA ROE 1 is of Latino origin. At all times relevant to this action she was a resident of Hudson County, New Jersey. 15. Plaintiff CARLA ROE 2 is of Latino origin. At all times relevant to this action she was a resident of Morris County, New Jersey. 16. Plaintiff CARLOS ROE 2 is of Latino origin. At all times relevant to this action he was a resident of Morris County, New Jersey.
5

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     666     ooof f     555888     PPPaaagggeeeI IDDD: :     666
17. Plaintiff CARLA ROE 3 is of Latino origin. At all times relevant to this action she was a resident of Salem County, New Jersey.
18. Plaintiff CARLOS ROE 4 is of Russian origin. At all times relevant to this action he was a resident of Passaic County, New Jersey.
19. Plaintiffs Carlos and Carla Roes 1-4 seek to proceed pseudonymously because they have an acute fear of retaliation by the immigration authorities whom they sue here as defendants. ICE has been known to retaliate against immigrants who have spoken out against immigration laws and practices. See, e.g. Laura Wides-Munoz, Student activist says ICE targeted her family to silence her, Associated Press, Mar. 4, 2008.
20. Because the unconstitutional conduct described in this Complaint disproportionately harms immigrants who have legitimate reason to fear immigration authorities, there is a strong public interest in allowing plaintiffs to proceed pseudonymously in order to provide this Court with an opportunity to protect the constitutional rights of individuals in this most vulnerable group.
The Federal Defendants 21. Defendant JULIE L. MYERS is, and was at all relevant times, the Assistant Secretary for Homeland Security for Immigration and Customs Enforcement (“ICE”), located in Washington, D.C. Defendant Myers is charged with the constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of ICE. Defendant Myers is sued in her individual capacity. ICE press releases describing arrests in New Jersey under Operation Return to Sender have repeatedly stated that those arrests were made pursuant
6

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     777     ooof f     555888     PPPaaagggeeeI IDDD: :     777
to the nationwide interior immigration enforcement strategy announced by defendant Myers and Michael Chertoff, Secretary of the Department of Homeland Security.
22. Defendant JOHN P. TORRES is Deputy Assistant Secretary for Operations for ICE, and was at all relevant times, the Director (or Acting Director) of the ICE Office of Detention and Removal Operations (“DRO”) in Washington, D.C. DRO is the branch of ICE that coordinates the removal of foreign nationals not entitled to remain in the country. As Director, defendant Torres is responsible for overseeing the apprehension, detention and removal of foreign nationals charged with violating federal immigration law. He is also responsible for the supervision of law enforcement officers assigned to DRO field offices, including the Newark, New Jersey office. Defendant Torres is responsible for the supervision and oversight of Fugitive Operations Teams. Defendant Torres is sued in his individual capacity.
23. Defendant SCOTT WEBER is the Director of the DRO Field Office in Newark, New Jersey. Defendant Weber is responsible for managing ICE enforcement activities in New Jersey, including the implementation of Operation Return to Sender by Fugitive Operations Teams. Defendant Weber is sued in his individual capacity.
24. Defendant BARTOLOME RODRIGUEZ is the former Acting Field Office Director for the DRO Field Office in Newark, New Jersey. In that role, defendant Rodriguez was responsible for managing ICE enforcement activities in New Jersey, including the implementation of “Operation Return to Sender” by Fugitive Operations Teams, in or around February-May 2007. Defendant Rodriguez remains employed with the Newark DRO Field Office. Defendant Rodriguez is sued in his individual capacity.
7

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     888     ooof f     555888     PPPaaagggeeeI IDDD: :     888
25. At all times relevant to the incidents complained of in this action, defendants JOHN DOE ICE AGENTS 1-50 were federal agents employed by ICE. They are responsible for carrying out the policies and practices of ICE, including the execution of “Operation Return to Sender” and the specific home raids complained of here. They are sued in their individual capacities. Upon information and belief, each John Doe ICE Agent defendant is responsible for the injuries and damages suffered by at least one plaintiff as a result of the acts alleged in this Complaint.
26. At all times relevant to the incidents complained of in this action, defendants JOHN SOE ICE SUPERVISORS 1-25 were federal agents employed by ICE. They are responsible for carrying out and supervising the policies and practices of ICE, including the execution of Operation Return to Sender, and are sued in their individual capacities. Upon information and belief, each John Soe ICE Supervisor defendant is responsible for the injuries and damages suffered by at least one plaintiff as a result of the acts alleged in this Complaint.
27. Plaintiffs are unaware of the true names of, total numbers of, and positions held by defendants John Doe ICE Agents and John Soe ICE Supervisors, and therefore sue those defendants by fictitious names. Plaintiffs will amend their Complaint to state the true names of these defendants after those names have been ascertained.
28. In committing the acts alleged in this Complaint, defendants John Doe ICE Agents and John Soe ICE Supervisors were acting on behalf of ICE. Upon information and belief, defendants John Doe ICE Agents were acting under the immediate supervision of John Soe ICE Supervisors pursuant to the authorization of defendants Myers, Torres, Weber, and/or Rodriguez.
8

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     999     ooof f     555888     PPPaaagggeeeI IDDD: :     999
The Penns Grove Defendants 29. Defendants JOHN LOE PENNS GROVE OFFICERS 1-10 were, at all times relevant to the incidents complained of in this action, officers of the Penns Grove Police Department. One or more defendants Loe, including one female officer and one male officer, participated, with John Doe ICE Agents and John Soe ICE Supervisors, in the raid on the home of plaintiff Carla Roe 3 in Penns Grove, New Jersey on August 1, 2006. Plaintiffs are unaware of the true names of, total numbers of, and positions held by defendants John Loe Penns Grove Officers, and therefore sue those defendants by fictitious names. Plaintiffs will amend their Complaint to state the true names of these defendants after those names have been ascertained.
FACTUAL BACKGROUND ICE Fugitive Operations in New Jersey 30. ICE, a division of DHS, is responsible for enforcing federal immigration law. The DRO is a branch of ICE. 31. Since 2002, the DRO has overseen ICE’s National Fugitive Operation Program,1 established to arrest and remove so-called immigration “fugitives.” ICE defines “fugitives” as individuals with outstanding deportation orders or individuals who failed to report to a DRO officer after receiving notice to do so. ICE implements the Fugitive Operations Program through Fugitive Operations Teams (“FOTs”) that are tasked with apprehending immigration fugitives.

1

The DRO was then a division of the Immigration and Naturalization Service

(“INS”). In 2003, when the INS was abolished and ICE was created in its place, the

DRO became a division of ICE.

9

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     111000     ooof f     555888     PPPaaagggeeeI IDDD: :     111000
32. Since 2006, the Fugitive Operations Program has substantially escalated its enforcement practices. At the end of Fiscal Year (“FY”) 2007, there were 75 FOTs nationwide, a five-fold increase over the number of teams in 2005. Congress has authorized funding for 29 additional teams in FY 2008. Since mid-2006, there have been four FOTs in the state of New Jersey (doubled from two FOTs at the beginning of 2005).
33. On January 31, 2006, each FOT in the country was ordered to arrest 1,000 fugitive aliens per year. This quota represented an 800% increase on the previous quota of 125 arrests per year, mandated just two years earlier.
34. On May 26, 2006, ICE commenced its “Operation Return to Sender,” an operation directed at arresting “fugitive” aliens, prioritizing the arrest of individuals possessing criminal records.
35. Following the commencement of Operation Return to Sender and the implementation of the 1,000-arrests quota, the number of individuals arrested by New Jersey FOTs doubled from 1,094 in FY 2006 to 2,079 in FY 2007.
Unlawful Home Raids Practices Unlawful Entry
36. A typical home raid is conducted in the pre-dawn hours of the morning. Multiple ICE agents surround a home believed to house one or more immigrant families. The agents pound furiously on the door and/or windows.
37. The agents and their supervisors use a variety of tactics – frequently deceptive and/or coercive – to cause an occupant to open the door. In many raids, the agents shout “Police!” or, in some cases, enlist a local police officer to deceive occupants about the ICE agents’ identities. ICE agents are not, in fact, police officers; rather, they
10

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     111111     ooof f     555888     PPPaaagggeeeI IDDD: :     111111
are administrative officers authorized to enforce the federal immigration laws. Because ICE officers do not usually have the general criminal search and arrest powers of police officers, the assertion that they are “police” misrepresents not only their identity but also the scope of their legal authority. This misrepresentation is especially significant to immigrant populations, who have been encouraged by New Jersey state officials to assist local police without fear of immigration consequences.
38. In other raids, an occupant simply opens the door in response to the pounding, assuming an emergency. Once the door is opened, the agents enter the home, without properly identifying themselves, and without obtaining an occupant’s consent. If the agents do not have a clear path of entry, they frequently forcibly push in the door and the individual who opened it. It has been reported that agents have even broken down doors to gain entry.
39. Some of the ICE agents involved in Operation Return to Sender treat the raids as a perverse sport. For example, in an April 30, 2007 email obtained under a Freedom of Information Act Request, a Connecticut ICE agent boasted to a state police officer, “We have an [operation] scheduled for Wed, 05/02/07 in New Haven . . . [I]f you’re interested we’d love to have you! We have 18 addresses — so it should be a fun time!! Let me know if you guys can play!!” (A copy of the email, obtained through a Connecticut Freedom of Information request, is attached as Exhibit A.)
40. For many ICE agents, deceit and dishonesty are regularized as part of the home raids practice. For example, according to a report from the Freehold, New Jersey Police Department, an ICE Team Leader told a local police officer that he and five members of his team surrounded a Brazilian family’s home at 6:00 a.m., but that the
11

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family was not opening the door. The ICE official asked the local police officer to have “a Marked Freehold Boro[ugh] Police vehicle pull up [sic] to the house and have a uniformed officer knock and have the accused family come to the door. Once someone was to come to the door ICE would take over the investigation.” (A copy of the Freehold Borough Police Department Operations Report, dated August 8, 2007, is attached as Exhibit B.)
Unlawful Seizures 41. Once the door is open, multiple agents typically enter and rapidly sweep through the home, displaying or brandishing firearms as if conducting a high-risk drug sweep. ICE agents on occasion point their guns directly at occupants who, far from posing a genuine threat, are partially undressed or sit terrified in their night clothes. 42. Agents order all of the occupants out of bed and to a central location in the home. Frequently these occupants include children, many of whom are United States citizens. Even though the purported “fugitive” target is frequently unknown to the occupants, the agents interrogate the occupants about their own identities and immigration status, without reasonable basis for believing that they are not United States citizens. In some raids, ICE agents are verbally and physically abusive. 43. In front of children and family members, agents handcuff individuals they suspect are unlawfully present in the United States and order them into a van outside. Often the agents do not allow the arrestees to change out of their bedclothes. They do not tell family members where they are taking their loved ones or how to find them. The agents drive around and repeat this sequence at other homes until their van is filled.
12

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44. The media has repeatedly documented severe abuses emerging from the ICE raids practice. See e.g., Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. Times, Oct. 3, 2007 (ICE agents conducted home raids wearing cowboy hats and brandishing shotguns and automatic weapons at home occupants including United States citizens and lawful residents); Aaron Nicodemus, Illegal Aliens Arrested in Raid; Feds Nab 15 in Milford, Sunday Telegram (Massachusetts), Dec. 9. 2007, at B1 (ICE agents broke through front door of home in the early morning with guns drawn, forcing occupants to get on the floor and not move); Elizabeth Llorente, Suits: Feds Play Dirty; Immigration Officials Say Raids on Illegals are Within the Law, The Record (Hackensack, N.J.), Jan. 2, 2008 (armed ICE agents show up at homes at 5:00 a.m., bang on doors, kick them in or use ruses to gain entry, then go into people’s bedrooms, rip covers off people in their beds and question them).2
45. The home raids have a devastating effect on children who witness law enforcement agents sweeping through their home with guns, ordering them and their

2

See also Sandra Hernandez, ICE Increases Use of Home Raids, Daily Journal,

Mar. 26, 2008 (ICE agents came to home of immigration attorney, looking for another

person; when attorney closed his door and asked them to leave premises because they

could not produce a search warrant, the agents threatened to break his door down); Nina

Bernstein, Immigrant Workers Caught in Net Cast for Gangs, N.Y. Times, Nov. 25, 2007

(Nassau County police commissioner describing the “cowboy mentality” of ICE agents

who raided Long Island homes, including armed raids on the wrong homes); Sandra

Forester, Immigration Raids Spark Anger in Sun Valley Area: One Family of Legal

Residents Says they were Terrorized. Agents Arrested 21 People, Idaho Statesman, Sept.

21, 2007; Press release, Office of the Mayor of New Haven, Connecticut, June 6, 2007

(describing “federal agents pushing their way into houses, brusquely ordering men,

women and children to common areas, and leading family members and loved ones away

in handcuffs”); Shannon Prather, Immigration Raids, Arrests Trigger Lawsuits, St. Paul

Pioneer Press (Minnesota), Apr. 19, 2007 (ICE agents, wearing bulletproof vests and

armed with guns, pushed their way into homes and terrified children).

13

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parents to gather together and suddenly handcuffing and dragging away their parents in the middle of the night. The large majority of these children are United States citizens.3
The Arbitrary, Inaccurate, and Pretextual Nature of “Fugitive” Raids 46. The alleged purpose of Operation Return to Sender is the arrest of “fugitives,” with a priority on criminal fugitives. Indeed, in defendant Myers’s 2007 budget presentation to the House Appropriations Committee, she stated that additional FOTs were necessary to “increase the efficiency of ICE immigration enforcement efforts to locate, apprehend, and remove primarily criminal aliens.” The majority of individuals arrested in New Jersey under Operation Return to Sender, however, are neither criminals nor fugitives. Of the 2,079 individuals arrested in New Jersey in FY 2007, 87% had no criminal history. See ICE Press Release, Newark, December 4, 2007. Moreover, ICE statistics confirm that in New Jersey, as few as one in three individuals arrested pursuant to Operation Return to Sender is actually a “fugitive,” as defined by ICE. See ICE Press Releases issued in Newark on May 1, 2007 (only 75 “fugitives” among 217 arrests from April 9-27, 2007); April 2, 2007 (only 55 “fugitives” among 128 arrests from March 1930, 2007); March 1, 2007 (only 89 “fugitives” among 220 arrests in January 2007); and November 20, 2006 (only 53 “fugitives” among 137 arrests from November 13-20, 2006). 47. The remaining individuals arrested were a mix of undocumented immigrants and, upon information and belief, United States citizens, permanent residents, and visa-holders who have never had any court order, warrant or criminal conviction

3

See Jeffrey S. Passel, Pew Hispanic Center, The Size and Characteristics of the

Unauthorized Migrant Population in the U.S. (2006), http://pewhispanic.org/files/

reports/61.pdf (finding that five out of six families in which at least one parent does not

possess lawful immigration status, have at least one U.S. citizen child).

14

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against them, but who were nevertheless swept up in the “Operation Return to Sender” dragnet. ICE refers to these individuals – the large majority of those arrested in New Jersey – as “collateral arrests.” This denomination obfuscates the reality that the search for “fugitives” often merely serves as a pretext for sweeping up large numbers of immigrants.
48. The accounts of plaintiffs and media reports indicate that in a substantial number of cases, ICE agents conduct home raids without reasonable grounds for believing that the purported target of their search is present in the home being raided. For example, in a series of pre-dawn warrantless raids on February 19, 2008 in Passaic, New Jersey, ICE acknowledged that its agents raided 13 homes in search of only six individuals.4 ICE agents returned with 12 arrestees.
49. On February 13, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law held a hearing on ICE’s detention and deportation of United States citizens in its home raids and other enforcement activities. An ICE representative acknowledged at that hearing that United States citizens have been wrongfully detained and even deported.5 The chair of the subcommittee remarked after the hearing that the United States had reached an era “where an overzealous government is interrogating, detaining and deporting its own citizens while treating non-citizens even worse.”

4

Meredith Mandell, Immigration raid raises questions about Passaic's 'safe haven'

status, NJ Herald News, Mar. 12, 2008; see also Nina Bernstein, Immigrant Workers

Caught in Net Cast for Gangs, N.Y. Times, Nov. 25, 2007 (Nassau County police

commissioner describing the “cowboy mentality” of ICE agents who raided Long Island

homes, including armed raids on the wrong homes).

5

Eunice Moscoso, House panel questions U.S. immigration raids, Austin

American Statesman, Feb. 16, 2008. Marisa Taylor, Feds admit jailing citizens as illegal

immigrants, Houston Chronicle, Feb. 14, 2008.

15

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50. Compounding the deliberate pretextual use of “fugitive” searches to arrest undocumented immigrants, much of the information in the database that ICE agents purportedly rely on to locate fugitives is outdated, inaccurate, and incomplete. In March 2007, the DHS Office of Inspector General publicly criticized ICE for its incomplete and inaccurate background information, understaffing, and incomplete training. The Inspector General’s detailed report on the Fugitive Operations Program, attached as Exhibit C, noted that:
(a) the DRO database that FOTs rely on contains inaccurate and incomplete information on fugitive aliens; a veteran analyst of the database estimated that 50% of the data is inaccurate;
(b) data was not reconciled with other federal databases to establish the validity of identity and background information on any particular fugitive;
(c) in 2006, DRO began hiring lower-level, less experienced officers for fugitive operations; and
(d) some fugitive operations agents have not completed the Fugitive Operations Training Program – 2004 guidelines allow the agents to work for up to two years before receiving the necessary training. 51. The raids on plaintiffs’ homes exemplify the extraordinary level of inaccuracy.
Raids on Individual Plaintiffs’ Homes Maria Argueta
52. Plaintiff Maria Argueta has had valid Temporary Protection Status since 2001, allowing her to remain lawfully in the United States for the duration of that status.
16

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53. On January 29, 2008, Maria was asleep in her home, the ground-floor apartment in a building in North Bergen, New Jersey. There were other tenants living in separate apartments on the basement and second-floor levels.
54. At or around 4:30 a.m., Maria was awakened by very loud banging on the door and windows of her building. The banging was so aggressive Maria thought the people were going to break the windows and the door. Maria was very frightened and did not open the door.
55. Upon information and belief, the basement tenants opened the door to their apartment and were confronted by defendant John Doe ICE Agents. The agents identified themselves as police, which they were not, and claimed they were looking for a criminal.
56. Upon information and belief, the basement tenants telephoned the landlord of the residence, who was Maria’s brother, and handed the telephone to one or more John Doe ICE Agents. Upon information and belief, the agents told Maria’s brother that they were police officers searching for a male criminal and that they needed to search the ground floor apartment of the residence. Maria’s brother then telephoned Maria and told her that police officers who were searching for a male criminal were outside and needed access to her apartment.
57. After this call, Maria opened her front door to the John Doe ICE Agents. The agents wore vests with the word “police” printed on them and visibly displayed holstered firearms. Maria saw one woman among them.
58. Having deceived Maria as to their purpose, these John Doe ICE Agents entered Maria’s apartment without voluntary informed consent, probable cause, or
17

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exigent circumstances. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of Maria’s home.
59. Once inside Maria’s apartment, the agents identified themselves as police and claimed they were looking for a particular man. Maria told the agents she did not know that man. There was no reasonable basis to suspect the man lived in the apartment, since no man had lived in the apartment in the seven years that Maria had lived here.
60. Without voluntary informed consent, probable cause, or exigent circumstances, the John Doe ICE Agents searched Maria’s entire apartment, entering all the rooms and looking inside closets and underneath beds. Upon information and belief, the agents did not possess a valid judicial warrant for the search of the home.
61. During the time that the agents were in her home, Maria felt as if she was not free to leave the apartment because the agents followed her throughout the house – even as she went to the bathroom and got changed out of her night clothes – and there were three officers blocking the front door to the apartment during the raid.
62. One or more of the John Doe ICE Agents asked Maria about her immigration status. Maria attempted to explain that she had been granted Temporary Protection Status and was waiting to receive her new TPS card in the mail.
63. Maria provided the agents with documents confirming the TPS grant. The agents threw the documents aside without looking at them. They told her she would not be receiving her TPS card that year.
64. Maria’s TPS status was easily verifiable in the publicly-accessible United States Citizenship and Immigration Service database.
18

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65. One or more of the John Doe ICE Agents asked Maria for identification. She presented her Salvadoran passport, which the agents confiscated and have never returned to her. As a result of this seizure, Maria had to later go to the Salvadoran consulate to obtain a new passport, at her own expense and inconvenience.
66. At the conclusion of their search, John Doe ICE Agents arrested Maria, without a warrant or reasonable belief that she was unlawfully present in the United States and in spite of clear and easily-verifiable evidence to the contrary.
67. A female ICE agent taunted Maria, telling her to put on clothes with long sleeves because where she was going there would be a lot of men.
68. Maria told the agents that her brother was going to get her an attorney to obtain her release from custody. One or more of the John Doe ICE Agents refused to allow her speak with an attorney after she stated that her brother would secure one for her, and mockingly told Maria not to bother because even with an attorney’s help she would never be released. Maria was handcuffed and led to a waiting car.
69. One or more of the John Doe ICE Agents transported Maria to an ICE facility in Elizabeth, New Jersey, where several ICE agents laughed at and humiliated her by mockingly singing a popular Latino song entitled “Maria has Gone.”
70. Later that day, Maria was transferred to a different ICE facility in Newark, where she was placed in a windowless office with several other women, before being transferred to a jail in Jersey City.
71. Maria did not receive any food or water until 7:00 a.m. the next morning, over 24 hours after she was arrested.
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72. Maria was finally released at 3:00 p.m. on January 30, almost 36 hours after she was arrested.
73. During the entire period of her detention, nobody explained to Maria why she was being detained, or why she was transferred between facilities. She was released without explanation or apology, without her wrongfully-taken passport, and without her jewelry that ICE agents confiscated from her in detention. Her jewelry was never returned to her.
Arturo Flores and Bybyana Arias 74. Plaintiffs Arturo Flores and his stepdaughter Bybyana Arias are both United States citizens. 75. On the morning of November 13, 2006, Arturo and his wife were asleep in their home in Clifton, New Jersey. Also asleep in the home was Arturo’s wife’s teenage daughter, Bybyana. 76. At or around 3:00 a.m., Arturo was awakened by loud banging on his front door and the sound of his doorbell ringing repeatedly. 77. As he approached the door, he saw four law enforcement officers, who he later learned were defendant John Doe ICE Agents, through the window. They were holding flashlights and shouting “Police!” 78. When Arturo opened the front door slightly, the agents forced the door open, shoved Arturo out of the way, and unlawfully entered the home in the absence of voluntary informed consent, probable cause, or exigent circumstances. 79. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home.
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80. The John Doe ICE Agents stated that they were looking for a particular individual whom they did not immediately identify.
81. Without seeking permission, and without probable cause or exigent circumstances, the John Doe ICE Agents searched all the rooms of Arturo’s home.
82. A female ICE agent entered Bybyana’s bedroom where she was sleeping. 83. Stating that she was “the police,” she shined a flashlight at Bybyana and shouted loudly, ordering Bybyana out of bed. 84. The agents ordered her to the common area, where she was detained in her nightclothes. 85. The agents ordered Arturo to open the door to his bedroom where his wife was still in bed. Without seeking or obtaining permission, the female John Doe ICE Agent entered the room and ordered the wife into the common area, where she was detained. 86. During the time that the agents were in Arturo’s home, none of the occupants were free to leave. One or more of the John Doe ICE Agents repeatedly shouted “Don’t move!” at the occupants in the common room. The agents carried holstered firearms. If an occupant moved, the agents placed their hands on their holstered guns, suggesting they were preparing to draw their weapons. 87. The agents interrogated Arturo without any reasonable basis to believe that he was not a United States citizen. 88. One or more of the John Doe ICE Agents demanded that Arturo produce identification. He produced a valid driver’s license. The agents transmitted over a radio the information found on his license.
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89. After they had searched the home, one or more John Doe ICE Agents arrested, handcuffed, and led away Arturo’s wife and brother, in front of Bybyana.
90. One or more of the John Doe ICE Agents remained in the home for an additional period of time after the search and arrests had been completed.
91. Bybyana was extremely distressed by the raid. She had difficulty eating and sleeping for at least six months after it occurred, and thought about the raid constantly. Her school grades markedly declined during that period.
Juan Ontaneda 92. On the morning of December 7, 2007, plaintiff Juan Ontaneda was living in a multi-family home in Newark, New Jersey. He was renting a room in an apartment with a family consisting of a father, mother, grandfather, and three children. 93. Between 5:30 and 6:00 a.m., Juan was startled by pounding on his front door. The pounding was so loud he feared the door would be knocked down. 94. Believing the person knocking might be another tenant who was locked out, Juan opened the door. He was confronted by six defendant John Doe ICE Agents, wearing jackets bearing the word “ICE” and displaying holstered firearms. 95. Without identifying themselves, one or more of the John Doe ICE Agents showed Juan what appeared to be a computer printout and asked if he knew the person pictured on the printout, a man the agents referred to as “Elias.” Juan denied knowing or recognizing the individual that the agents were looking for. 96. Juan attempted to close the door, but several of the John Doe ICE Agents physically held the door open.
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97. At this time, the owner of the multi-family dwelling came downstairs from the second floor apartment. After speaking with the agents, the landlord told Juan to get the grandfather.
98. When Juan returned to the entryway of his apartment, he discovered that all the John Doe ICE Agents had entered the apartment behind him. Upon information and belief, the ICE Agents entered without a judicial warrant, any occupant’s voluntary informed consent, and in the absence of probable cause or exigent circumstances.
99. While detaining the occupants of the house, a number of the John Doe ICE Agents interrogated the grandfather about his immigration status.
100. While detaining Juan in the kitchen, the agents demanded identification. Juan produced his valid North Carolina driver’s license.
101. None of the John Doe ICE Agents asked Juan at that time, or at any other time while they were in the home, about his immigration status.
102. The agents contacted other ICE personnel to inquire whether there was an outstanding deportation order for Juan. Upon information and belief, the agents were informed that Juan did not have an outstanding deportation order against him.
103. Juan heard the agent who had questioned him suggest to other agents that he should not be arrested. However, a second agent, who upon information and belief was senior to the first agent, ordered that Juan be arrested.
104. In the absence of a warrant, probable cause, exigent circumstances, or a reasonable basis for believing that Juan was not a United States citizen or was unlawfully present in the United States, one or more of the John Doe ICE Agents arrested Juan.
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105. The John Doe ICE Agents handcuffed his wrists and ankles and put a beltcuff around his waist. The agents then escorted Juan to a van waiting outside the home and transported him to the detention facility in Elizabeth, New Jersey.
Veronica Covias 106. Veronica Covias is a lawful permanent resident of the United States. In March 2007, she lived with her husband and son in a two-story home in Paterson, New Jersey. 107. At approximately 4:00 a.m. on or about March 26, 2007, the family awoke to loud, repeated pounding on their front door and shouts of “Paterson Police!” Veronica went downstairs and opened the door a crack, thinking that there was an emergency. At the door were several defendant John Doe ICE Agents. She asked what they wanted. 108. Defendants John Doe ICE Agents stated that they just wanted to talk to Veronica. In response, Veronica asked if they had a warrant. The agents did not answer her question, instead repeating they “just want to talk to her.” Before Veronica could respond, a John Doe ICE Agent put his foot in the crack of the door, pushed the door open, and forced his way into the home. Veronica did not give voluntary, informed consent to this entry. Upon information and belief, the agents did not possess a judicial warrant. 109. Four or five John Doe ICE agents entered into the home, displaying batons. They wore uniforms with “ICE” printed on the back. 110. Without seeking or obtaining consent, two John Doe ICE Agents searched each room on the first floor of the home. The female agent detained Veronica, and two other agents went upstairs.
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111. Veronica asked the agents if she could go upstairs to look after her husband who was sick in bed. An agent told her she had to remain detained on the first floor and could not go to see him. The agent stated that they would take her husband “as he is.” She heard the agents yelling at her son upstairs.
112. Veronica then saw her son coming down the stairs handcuffed at his wrists and ankles. She begged the agents repeatedly to tell her where they were taking her son. They refused to answer. She pleaded for permission to hug her son goodbye, but the agents pushed her aside and took her son outside to an unmarked van. They prevented Veronica from running out of the house after her son by closing the door on her.
113. After being held in solitary confinement for approximately three days in Georgia, Veronica’s son was deported.
Carla Roe 1 114. In August 2007, plaintiff Carla Roe 1 resided in a home in Hudson County, New Jersey. Also residing in the home were Carla Roe 1’s husband and the couple’s two young children, both of whom are United States citizens. 115. Around 6:30 a.m. one morning in August 2007, Carla Roe 1 and her husband were startled by loud knocking at their front door. 116. The husband opened the front door just wide enough to see who was outside. He was confronted by three defendant John Doe ICE Agents. 117. At no point did the agents identify themselves. They stated that they were looking for a person who sold drugs, and asked to enter the home. 118. When the husband asked who the agents were looking for, the agents physically pushed the door wide open and walked straight into the home in the absence of
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probable cause or exigent circumstances, and without the husband’s voluntary informed consent. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home.
119. The husband called for Carla Roe 1 to come downstairs and also asked her to call her brother. When Carla Roe 1 came down the stairs and saw the agents, she stated clearly that that the agents did not have permission to be in her home. The agents falsely indicated that her husband had given them permission to enter. Carla Roe 1 asked her husband if he had let the agents in. He responded in Spanish that he had not given the agents permission to enter, but that they had pushed their way in.
120. Carla Roe 1 asked the agents to speak quietly to avoid waking her two sleeping children (both United States citizens), but one or more John Doe ICE Agents replied that they “didn’t care about the kids” and that they could “do whatever [they] want[ed].”
121. One or more of the agents asked Carla Roe 1 for identification. She told them she did not have any. The agents told Carla Roe 1 they wanted to check her credit because they thought someone might be fraudulently using her Social Security number.
122. Carla Roe 1 told the agents she had an attorney whom she wanted to contact. One or more John Doe ICE Agents told her that she was not allowed to make any phone calls. When she asked her husband to pass her his cellular phone so she could call her attorney, one or more John Doe ICE Agents grabbed the phone from his hand.
123. One or more John Doe ICE Agents told Carla Roe 1 that if she did not have identification, they would take her into custody.
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124. After Carla Roe 1 explicitly told the agents that they did not have consent to be in her home, the agents searched the entire ground floor of the home with flashlights, without presenting a warrant and without voluntary informed consent, probable cause, or exigent circumstances.
125. The agents arrested Carla Roe 1 and placed her in the back of their car. They did not tell Carla Roe 1 or her husband where they were taking her. They transported her to the Hudson County Correctional Center.
126. At the correctional center, Carla Roe 1 again asked to speak with her attorney, but one or more John Doe ICE Agents forbade her from doing so.
127. After being detained for approximately two and one-half months, Carla Roe 1 was deported to Mexico.
Carlos Roe 2 and Carla Roe 2 128. Carla Roe 2 lived with her son Carlos Roe 2, and several other individuals in a three-story home in Morris County, New Jersey. 129. One morning in June 2007, at approximately 6:45 a.m., Carla Roe 2 heard loud, aggressive banging on the front door. As she opened the door to see who was there, three defendant John Doe ICE Agents, with guns drawn, forced their way into the home and physically pushed Carla Roe 2 outside. The agents entered the home in the absence of probable cause or exigent circumstances, and without Carla Roe 2’s consent. Upon information and belief, they lacked a judicial warrant for the entry and subsequent search. 130. Carla Roe 2 re-entered her home, following the agents.
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131. The agents grabbed Carla Roe 2, pulled her up the stairs, and pushed her down onto a couch. The agents proceeded to the third floor while a John Doe ICE Agent detained Carla Roe 2 on the second floor.
132. On the third floor, the agents found Carlos Roe 2, a high school student, coming out of the bathroom in his underwear. Without reasonable basis to believe he was not a United States citizen, the agents grabbed him and handcuffed him. A John Doe ICE Agent pointed his gun at Carlos Roe 2, while a female agent restrained Carlos Roe 2.
133. Without explanation, the agents asked him if he had any papers. Carlos Roe 2 responded that he had papers from high school, and that the agents could contact his high school. When the agents stated that they did not mean those types of papers, Carlos Roe 2 responded that he did not have any other papers.
134. During this search and seizure, the phone rang. One of the agents looked at the “caller ID” and asked Carla Roe 2 about the caller whose name appeared on the phone display; Carla Roe 2 did not respond. The agent then wrote down every name and number recorded in the “caller ID” function of Carla Roe 2’s home phone.
135. While the agents were focused on Carlos Roe 2, Carla Roe 2 used the phone to call a family member. When the agents realized she was on the phone, a John Doe ICE Agent grabbed the phone from her and forcefully pulled it out of the wall and hid it in the refrigerator.
136. The agents pushed Carla Roe 2 onto the couch and the female agent yelled abusive language, including “Fuck you!” and “You are a piece of shit!”
137. A John Doe ICE Agent took Carlos Roe 2 outside. Two John Doe ICE Agents stayed in the home.
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138. Carla Roe 2 became visibly upset and distressed. An agent ordered her to be quiet and sit down, and then shoved a gun in her chest to make her sit down.
139. Anxious for the officers to leave, she told them to “arrest [her] already.” John Doe ICE Agent taunted, “Why don’t you go back to your own country!” The agents left, without telling her where they had taken her son.
140. The agents placed Carlos Roe 2 in an unmarked vehicle. At no point did they read him his rights or advise him that he could speak with an attorney. They transported Carlos Roe 2 to a police station, where they questioned him for approximately thirty minutes and asked him to identify individuals in photographs.
141. The agents repeatedly asked Carlos Roe 2 if he was a gang member or sold drugs, both of which he denied. He has never had any connection whatsoever with any gang and has not been charged with crimes in connection with gang activity.
142. Carlos Roe 2 was taken to ICE Headquarters in Newark for six hours, and then brought before a judge, who set bond at $20,000. He was detained in a facility in Hudson County for two months.
Carla Roe 3 143. Carla Roe 3 lived in Salem County, New Jersey with her husband, three U.S.-citizen children, and several other relatives. 144. At approximately 3:00 a.m. one day in August 2006, Carla Roe 3 and her husband, asleep in their home, awoke to loud knocking on their door. The individuals outside repeatedly yelled “Open the front door!” Carla Roe 3 responded “no.” 145. Eventually, Carla Roe 3’s husband walked down the steps to the front door and opened it to see what the callers wanted. Carla Roe 3 saw defendants John Doe
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ICE Agents and John Loe Penns Grove Officers, who were wearing bullet-proof vests and carrying guns.
146. Carla Roe 3 recognized among the law enforcement officials a female Spanish-speaking local police officer from the Penns Grove Police Department. In addition, upon information and belief, Carla Roe 3’s husband recognized a black male local police officer from the Penns Grove Police Department.
147. John Doe ICE Agents and John Loe Penns Grove Officers told Carla Roe 3’s husband that they were looking for a particular individual, who was Carla Roe 3’s brother. Without waiting for a response, the agents pushed the husband up the stairs and shoved him into the kitchen counter inside the home. They also shoved Carla Roe 3 out of the way. All John Doe ICE Agents and John Loe Penns Grove Officers had their guns drawn when they entered the home. All agents kept their guns drawn for the duration of the raid, except for the local police officer that Carla Roe 3 recognized, who holstered it once she saw Carla Roe 3. Neither Carla Roe 3 nor her husband gave consent to the defendants’ entry of their home. Several John Doe ICE Agents and/or John Loe Penns Grove Officers remained outside.
148. Once inside the home, a John Doe ICE Agent handcuffed the husband and again asked where Carla Roe 3’s brother was. The husband replied that he had been deported two to three years earlier. Upon information and belief, a minimal search of DHS records would have revealed that the brother had already been deported. It was unreasonable for the agents to believe that the brother would be in the house.
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149. A John Doe ICE Agent called for back-up and at least another twelve John Doe ICE Agents came into the home. Numerous law enforcement officers remained outside around the perimeter of the home.
150. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home. Nevertheless, the agents, lacking probable cause or exigent circumstances, detained Carla Roe 3 on the couch in an intimidating manner, with one or more agents pointing their guns at her and indicating that she was not free to leave. The agents repeatedly asked whether Carla Roe 3 or her husband had weapons or drugs. Both Carla Roe 3 and her husband replied “no” each time. The agents also told Carla Roe 3 and her husband to identify the other people living in the home.
151. The agents proceeded to search the entire home without voluntary informed consent, probable cause, or exigent circumstances. On information and belief, upon encountering Carla Roe 3’s sleeping relative, one agent put a gun to his head and shouted “Wake up!” The agents handcuffed several of Carla Roe 3’s relatives and brought them into the common area.
152. Carla Roe 3 begged the agents not to go into her children’s bedrooms because she did not want them to be frightened. Against her pleas, the agents searched inside both rooms where her U.S.-citizen children were sleeping.
153. When Carla Roe 3 tried to ask the agents questions, they refused to answer. They repeatedly screamed “Shut up!” at her and other occupants of the house.
154. One or more of the John Doe ICE Agents asked Carla Roe 3 for identification. She presented her Mexican passport, which the agents confiscated and
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have never returned to her. As a result of this seizure, Carla Roe 3 had to later go to the Mexican consulate to obtain a new passport, at her own expense and inconvenience.
155. A John Doe ICE Agent threatened Carla Roe 3 that if she did not go to “the office” she would be deported to Mexico and that the state would take her children. In addition, the agent said he would make it his “personal mission” to ensure her husband went to jail for 22 years for crossing the border. The agents then arrested her husband, and two other occupants of the house. All three were subsequently deported.
Carlos Roe 4 156. Plaintiff Carlos Roe 4 is of Russian origin and is married to a United States citizen. 157. At approximately 5:30 a.m. one day in September 2007, John Doe ICE Agents knocked on the front door of Carlos Roe 4’s two-bedroom apartment in Passaic County, New Jersey. 158. Carlos Roe 4’s friend, visiting for a week from out of town, opened the door and was confronted by two defendant John Doe ICE Agents. 159. Carlos Roe 4 rushed to the door to see who was there. Suddenly, there were approximately nine John Doe ICE Agents at the door. One agent forced the door open with her back and barred exit from the apartment with her foot and arm. 160. A defendant John Doe ICE Agent stated to Carlos Roe 4 that they were looking for a man named Jose Morales, who had been fraudulently using Carlos Roe 4’s mailing address. The agent showed Carlos Roe 4 a hand-drawn picture of a man, sketched on plain paper, which looked to Carlos Roe 4 like a child’s drawing.
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161. Carlos Roe 4 told the agents he had lived in his apartment for seven years and had never seen any mail for Jose Morales and did not know him. The John Doe ICE Agents then changed their story and said that they were going door-to-door to find Morales.
162. Without voluntary informed consent, probable cause or exigent circumstances, and (on information and belief) without a judicial warrant, the agents entered and searched the home. They visibly displayed their guns.
163. Carlos Roe 4 was stunned and frightened. He was not free to leave his apartment because the female agent was blocking the front door, and the presence of multiple armed agents in his home also made him feel that he was not free to leave.
164. The agents demanded identification from Carlos Roe 4 and his friend. Upon information and belief, they called Carlos Roe 4’s name into their radio and learned he had no outstanding deportation order. One John Doe ICE Agent brought the friend’s identification outside and another John Doe ICE Agent said, “It’s him.”
165. Two John Doe ICE Agents searched through the friend’s room and belongings, including inside drawers and suitcases.
166. While one still blocked the front doorway, the other agents searched the rest of Carlos Roe 4’s home. The female agent flipped through his books and another John Doe ICE Agent rummaged through his mail, asking him questions about his previous roommate whose name appeared on some mail items.
167. The agents then arrested the friend and took him outside, telling Carlos Roe 4 that they were just checking his friend out and would return him shortly. The friend remains detained at the Elizabeth, New Jersey immigration detention facility.
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The Pervasiveness of ICE Raids Practices 168. The nationwide pattern and practice of unlawful raids of the type plaintiffs experienced has been the subject of widespread media reporting as well as multiple lawsuits filed in other federal district courts. See, e.g., Barrera v. Boughton, No. 07-cv1436 (D. Conn. Sept. 26, 2007); Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sep. 20, 2007); Flores-Morales v. George, No. 07-cv-0050 (M.D. Tenn. July 5, 2007); Reyes v. Alcamtar, No. 07-cv-2271 (N.D. Cal. Apr. 26, 2007); Mancha v. ICE, No. 06-cv-2650 (N.D. Ga. Nov. 1, 2006). 169. Members of Congress have also directly questioned DHS about the raids practice. In a letter dated June 11, 2007, three members of Congress raised direct concerns about ICE home raids undertaken in New Haven, Connecticut on June 6, 2007, in which ICE agents “pushed their way into homes” without search warrants, and “treated both adults and children inappropriately.” The letter asked why, despite stated DHS policy, only four of the 31 individuals arrested were actually “fugitives” with outstanding deportation orders. 170. The raids practice has also been criticized by the United Nations Special Rapporteur on the Human Rights of Migrants in his most recent report on the United States. See Report of Special Rapporteur Jorge Bustamante A/HRC/7/12/Add. 2 (Mar. 5, 2008) at 16-17 (noting ICE agents’ “frequent disregard of due process” and reporting victims’ stories that agents entered homes without warrants, denied occupants access to lawyers, and coerced them to sign voluntary departure agreements). 171. Reports of ICE raids – and their often concomitant abuses – have been particularly prevalent in the state of New Jersey. Since March 2006 ICE home raids have
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been reported across the state, including in Metuchen on May 24, 2006;6 Woodbridge on May 24, 2006;7 multiple towns between May 26 and June 14, 2006;8 Edison on May 24, 2006;9 Penns Grove on August 1, 2006; Clifton on November 13, 2006; Atlantic City on November 13-19, 2006;10 Bridgeton on January 29, 2007; Vineland on February 1, 2007;11 Bridgeton on February 1, 2007;12 Englewood on March 26, 2007;13 Paterson on March 26 or 27, 2007; Cliffside Park in April 2007;14 Newark in April 2007;15 Morristown on June 6, 2007;16 Emerson on June 20, 2007;17 Hillsdale on June 20, 2007;18 Westwood on June 20, 2007;19 Penns Grove in August 2007; Union City in August 2007;

6

See id.

7

See id.

8

See Jennifer Lee and Julia Mead, 2,100 are Arrested on Immigration Violations,

N.Y. Times, June 15, 2006.

9

See ICE Press Release, ICE operation arrests 32 fugitives hiding in Edison, New

Jersey: Surveillance by ICE offices indicates some fugitives were working together to

defy the law, May 24, 2006, www.ice.gov/pi/news/newsreleases/articles

/060524edison.htm; John Dunphy, They can run, but they can't hide for long: Homeland

Security Division Cracks Down On Illegal Immigrants, The Sentinel, May 31, 2006;

Brian Donohue, Raids leave gaps in a thriving community: Immigration laws target

Indonesians, The Star-Ledger, July 9, 2006. 10 See Derek Harper, Immigration officials make 137 arrests around N.J., Atlantic

City Press, Nov. 21, 2006. 11 See Miles Jackson, Immigration Agents Spook City Residents, The Daily Journal

(Vineland, N.J.), Feb. 2, 2007.

12

See id.

13 See Lucas Sanchez, ICE Raid in Englewood, Blog at Blue Jersey.com, Mar. 26,

2007 (http://www.bluejersey.com/showDiary.do?diaryId=4373). 14 Elizabeth Llorente, Suits: Feds play dirty; Immigration officials say raids on

illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008.

15

Id.

16 Nancy Rosenstock, 'La Migra' Grabs 7 in New Jersey, The Militant, June 25,

2007; Daily Record Staff Report, Morris Gang, Immigration Raid Nets 7, The Daily

Record, June 7, 2007. 17 See Elizabeth Llorente, 18 Reputed Gang Members Arrested, The Record

(Hackensack, N.J.), June 22, 2007 (accessed on LexisNexis.com, Mar. 11, 2008).

18

See id.

19

See id.

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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     333666     ooof f     555888     PPPaaagggeeeI IDDD: :     333666
Buena on August 29, 2007;20 Fair Lawn in September 2007; 21 Paterson on September 21, 2007; Newark on December 7, 2007; Princeton on December 7, 2007;22 North Bergen on January 29, 2008; and Passaic on February 19, 2008.23
Defendants’ Supervisory Responsibility Defendants Myers and Torres
172. Defendants Myers and Torres oversaw the implementation of a five-fold increase in the number of Fugitive Operations Teams in the two-year period between 2005 and 2007. They also approved a remarkable 800% increase in the arrest quotas of each team in the corresponding period of time without providing the necessary training to prevent ICE agents – faced with these new pressures – from acting abusively and unlawfully. They facilitated the creation of a culture of lawlessness and lack of accountability within an agency they supervise.
173. In recent years, defendants Myers and Torres have been repeatedly placed on notice of the routine unconstitutional home-raid practices by ICE agents throughout the country. Specifically, defendants Myers and Torres have been sued numerous times for their roles in these practices. See e.g. Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sept. 20, 2007) (suing defendants Myers and Torres); Flores-Morales v. George, No. 07-cv0050 (M.D. Tenn. July 5, 2007) (suing defendant Myers); and Mancha v. ICE, No. 06cv-2650 (N.D. Ga. Nov. 1, 2006) (suing defendants Myers and Torres).
20 See James Quaranta, Six Arrested in Immigration Raids, The Daily Journal (Vineland, N.J.), August 31, 2007. 21 See Elizabeth Llorente, Suits: Feds play dirty; Immigration officials say raids on illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008. 22 See Robert L. Ashbaugh, Princeton Borough, Editorial/Opinion, The Times of Trenton, Jan. 7, 2008. 23 See Meredith Mandell, City Police, federal agents arrest 12 illegals; Critics: Action violates ‘Save Haven’ measure, NJ Herald News, Feb. 20, 2008.
36

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174. On June 11, 2007, the National Immigration Forum sent a letter to DHS Secretary, Michael Chertoff, questioning the conduct by ICE agents in New Haven home raids earlier that month. Defendant Myers responded to those allegations in a letter dated July 6, 2007, attached as Exhibit D. She acknowledged that only five of the 29 individuals arrested were fugitives. She similarly acknowledged that agents conducting residential searches and arrests routinely do not have judicially-issued warrants, and are therefore required to obtain knowing, voluntary consent before entering a home. However, according to defendant Myers, such consent was ensured simply by assigning a Spanish-speaking officer to each Fugitive Operations Team.
175. Defendant Torres had direct responsibility for the execution of fugitive operations within Operation Return to Sender. Like defendant Myers, he was made aware of unconstitutional home-raid practices by ICE agents through the media and lawsuits against him dating back to November 2006, and was specifically notified of unconstitutional home raid practices by officers under his supervision in New Haven, Connecticut. According to a memorandum obtained through the Freedom of Information Act, attached as Exhibit E, New Haven’s mayor called defendant Torres in June 2007 after home raids had been executed by ICE agents in New Haven. The mayor told defendant Torres about allegations that defendant Torres’s officers “barged into houses without warrants and verbally abused the people and children were manhandled.” The Mayor questioned whether defendant Torres’s office should continue to allow such home raids to be conducted with these allegations pending.
176. Despite being made aware of the of unconstitutional home-raid practices through lawsuits, congressional inquiries, repeated national media reports, and other
37

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sources, defendants Myers and Torres have not conducted any meaningful investigations into the practices, or provided any specific guidelines or training to fugitive operations agents to ensure that home entries and searches are conducted within constitutional limits. Nor have they, upon information and belief, meaningfully disciplined any officer responsible for such unconstitutional conduct.
177. Moreover, defendants have contributed to such unlawful conduct by continuing to publicize, and laud as “successful,” their department’s dramatic increase in immigration arrests over the past two years, as reflected in boastful press releases touting ICE’s accomplishments. See e.g., Newark ICE press releases on May 1, 2007; April 2, 2007; March 1, 2007; November 20, 2006; and October 19, 2006. These press releases all indicate that the high number of arrests were made pursuant to the nationwide interior immigration enforcement strategy announced by defendant Myers and Secretary Chertoff.
Defendants Rodriguez and Weber 178. As Directors of the Newark DRO field office, defendants Rodriguez and Weber were each directly responsible for overseeing fugitive operations and the execution of “Operation Return to Sender” in New Jersey. Each of them makes frequent reports and comments on the number of arrests made by ICE agents, and speaks publicly on behalf of ICE about the implementation of Operation Return to Sender in New Jersey. Comments to the media by each of them regarding allegations of inappropriate action by their fugitive operations personnel, including unconstitutional home raids, suggest that defendants Rodriguez and Weber at best acquiesced in, and at worst, encouraged such behavior. For example, according to a report in The Bergen Record, when defendant
38

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Weber was presented with specific allegations regarding a pattern of home raids in New Jersey conducted without search warrants or consent, he responded: “I don’t see it as storming a home . . . We see it as trying to locate someone.” Elizabeth Llorente, Immigration officials say raids on illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008.
179. Upon information and belief, defendants Rodriguez and Weber each knew that ICE agents were entering and searching homes in New Jersey without search warrants and without obtaining voluntary, informed consent.
180. Upon information and belief, defendants Rodriguez and Weber did not implement any guidelines, protocols, training, oversight, or record-keeping requirements that would ensure that officers under their supervision conducted home entries and searches within constitutional limits.
181. Upon information and belief, defendants Rodriguez and Weber have not conducted any substantial investigations into allegations of unconstitutional home raids of which they were made aware, or meaningfully disciplined any officer responsible for such unconstitutional conduct. Instead, they have simply continued to publicize ICE’s “successful” increase in New Jersey immigration arrests over the past two years, while allowing the unconstitutional means for many of the arrests to continue unchecked.
39

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     444000     ooof f     555888     PPPaaagggeeeI IDDD: :     444000
FIRST CLAIM: BIVENS CLAIM FOR UNREASONABLE HOME ENTRIES IN VIOLATION OF
THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of all plaintiffs against defendants Myers, Torres, Weber, Rodriguez, John
Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25) 182. Plaintiffs reallege paragraphs 1 through 181, as if fully set forth herein. 183. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 184. By entering the homes of plaintiffs Maria Argueta, Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusions reasonable, one or more of defendants John Doe ICE Agents 1-50 violated plaintiffs’ Fourth Amendment rights. 185. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-25, supervisors of the John Doe ICE Agents, participated in violating plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations. 186. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear training and under the pressure of sharply-increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
40

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     444111     ooof f     555888     PPPaaagggeeeI IDDD: :     444111
187. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiffs.
188. As a result of these intrusions into their homes, plaintiffs Maria Argueta, Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
189. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 give rise to a cause of action against them under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
SECOND CLAIM: BIVENS CLAIM FOR UNREASONABLE HOME SEARCHES IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of all plaintiffs against defendants Myers, Torres, Weber, Rodriguez, John
Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25) 190. Plaintiffs reallege paragraphs 1 through 189, as if fully set forth herein. 191. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable searches of their homes by government officers. 192. By searching the homes of plaintiffs Maria Argueta, Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 without a valid search warrant, without consent, and without other circumstances (such as
41

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probable cause and exigency) that would render such intrusions reasonable, one or more defendant John Doe ICE Agents 1-50 violated plaintiffs’ Fourth Amendment rights.
193. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-25, supervisors of the John Doe ICE Agents, participated in violating plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
194. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the pressure of sharply increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
195. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
196. As a result of these intrusions into their homes, plaintiffs Maria Argueta, Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Carla and Carlos Roes 1-4 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
197. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 give rise to a cause of action against them under Bivens, supra.
42

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     444333     ooof f     555888     PPPaaagggeeeI IDDD: :     444333
THIRD CLAIM: BIVENS CLAIM FOR UNREASONABLE SEIZURES IN VIOLATION OF THE
FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of plaintiffs Argueta, Flores, Arias, Ontaneda, Covias, Carla Roes 2 and 3 and Carlos Roes 2 and 4, against defendants Myers, Torres, Weber, Rodriguez, John Doe ICE
Agents 1-50, and John Soe ICE Supervisors 1-25) 198. Plaintiffs reallege paragraphs 1 through 197, as if fully set forth herein. 199. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable seizures. 200. By detaining plaintiffs Maria Argueta, Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, Carla Roes 2 and 3 and Carlos Roes 2 and 4 without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such seizures reasonable, one or more of defendants John Doe ICE Agents 1-50 violated the Fourth Amendment rights of these plaintiffs. 201. By taking plaintiff Maria Argueta into custody for almost 36 hours, in spite of her lawful status and without a valid arrest warrant or other circumstances that would render such an arrest reasonable, one or more of defendants John Doe ICE Agents 1-50 further violated the Fourth Amendment rights of plaintiff Argueta. 202. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-25 participated in violating plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations. 203. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the
43

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pressure of sharply increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
204. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
205. As a result of these detentions, plaintiffs Maria Argueta, Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, Carla Roes 2 and 3 and Carlos Roes 2 and 4 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
206. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 give rise to a cause of action against them under Bivens, supra.
FOURTH CLAIM: BIVENS CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of plaintiffs Carla Roes 2 and 3 and Carlos Roe 2 against defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-
25) 207. Plaintiffs reallege paragraphs 1 through 206, as if fully set forth herein. 208. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from the use of unreasonable or excessive force. 209. By pushing through the front door with their guns drawn and forcing their way into the home of Carlos Roe 2 and Carla Roe 2, aggressively shoving and grabbing Carla Roe 2, pulling her up the stairs, pushing her down onto a couch while yelling abusive language and pointing a gun at her chest, one or more of defendants John Doe
44

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ICE Agents 1-50 used excessive force against Carla Roe 2. One or more defendant John Doe ICE Agents 1-50 also used excessive force against Carlos Roe 2 by grabbing him, placing him in handcuffs, and detaining him at gunpoint as he came out of bathroom in his underwear. These actions violated the Fourth Amendment rights of plaintiffs Carlos Roe 2 and Carla Roe 2.
210. By pushing through the front door of plaintiff Carla Roe 3’s home with weapons drawn, shoving her aside upon entry, and repeatedly screaming at her, and pointing a gun at her, one or more of defendants John Doe ICE Agents 1-50 used excessive force against her, and in doing so, violated the Fourth Amendment rights of plaintiff Carla Roe 3.
211. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-25, supervisors of the John Doe ICE Agents, participated in violating the plaintiffs’ rights, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
212. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the pressure of sharply increasing quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
213. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
45

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214. As a result of the use of excessive force, plaintiffs Carla Roes 2 and 3 and Carlos Roe 2 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
215. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 give rise to a cause of action against them under Bivens, supra.
FIFTH CLAIM: BIVENS CLAIM FOR VIOLATIONS OF SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION (On behalf of plaintiffs Carla Roe 2 and Carla Roe 3 against defendants Myers, Torres,
Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25) 216. Plaintiffs reallege paragraphs 1 through 215, as if fully set forth herein. 217. Plaintiffs have a constitutionally protected right under the Fifth
Amendment to the United States Constitution to be free from abusive government conduct that shocks the conscience.
218. By unnecessarily shoving their guns into the chest of plaintiff Carla Roe 2 and verbally abusing her in an outrageous manner, including shouting “Fuck you!”, “You are a piece of shit!”, and “Why don’t you go back to your own country,” one or more of defendants John Doe ICE Agents 1-50 violated Carla Roe 2’s Fifth Amendment substantive due process right to be free from governmental conduct that shocks the conscience.
219. By drawing their guns during the raid on the home of plaintiff Carla Roe 3, pointing their guns at her, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of defendants John Doe ICE Agents 1-50 violated Carla Roe 3’s Fifth Amendment
46

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substantive due process right to be free from governmental conduct that shocks the conscience.
220. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-25 participated in violating the rights of plaintiffs Carla Roe 2 and 3, directed the John Doe ICE Agents to violate them, or had knowledge of and acquiesced in the violations.
221. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of the rights of plaintiffs Carla Roe 2 and 3; tolerated past or ongoing misbehavior of this kind; or, by fostering disrespect for the rights and dignity of individuals suspected of being undocumented immigrants to the United States, were deliberately indifferent to the risk that ICE officers would engage in the conscience-shocking practices that occurred in this case.
222. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiffs.
223. As a result of defendants’ conscience-shocking behavior, plaintiffs Carla Roe 2 and Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
224. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 give rise to a cause of action against them under Bivens, supra.
47

!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     444888     ooof f     555888     PPPaaagggeeeI IDDD: :     444888
SIXTH CLAIM: BIVENS CLAIM FOR VIOLATION OF PROCEDURAL DUE PROCESS RIGHTS TO COUNSEL UNDER THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION (On behalf of plaintiff Carla Roe 1 against defendants Myers, Torres, Weber, Rodriguez,
John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25) 225. Plaintiffs reallege paragraphs 1 through 224, as if fully set forth herein. 226. Plaintiffs have a constitutionally protected right under the Fifth Amendment to the United States Constitution to due process of law, including the right to consult with counsel regarding immigration proceedings. 227. One or more of defendants John Doe ICE Agents 1-50 violated the Fifth Amendment procedural due process rights of plaintiff Carla Roe 1 by preventing her from contacting her attorney. 228. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-25 participated in violating the rights of plaintiff Carla Roe 1, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations. 229. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of Carla Roe 1’s rights; tolerated past or ongoing misbehavior of this kind; or, by permitting and/or encouraging ICE agents to impede attempts by individuals suspected of being undocumented immigrants to the United States to contact attorneys to assist them, were deliberately indifferent to the risk that ICE officers would violate the Fifth Amendment due process rights of individuals suspected of being undocumented immigrants to the United States.
48

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230. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 1.
231. As a result of defendants’ obstruction of her attempts to contact her attorney, plaintiff Carla Roe 1 suffered harms, including but not limited to loss of liberty and emotional distress.
232. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 give rise to a cause of action against them under Bivens, supra.
SEVENTH CLAIM: BIVENS CLAIM FOR VIOLATION OF EQUAL PROTECTION OF THE LAWS
UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Ontaneda against defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25)
233. Plaintiffs reallege paragraphs 1 through 232, as if fully set forth herein. 234. Plaintiffs have a constitutionally protected right under the Fifth Amendment to the United States Constitution to due process of law, which includes equal protection of the laws. 235. Upon request, plaintiff Juan Ontaneda provided to one or more of defendant John Doe ICE Agents 1-50 a valid driver’s license, and defendants had no reason to suspect that Mr. Ontaneda had committed any crime or was not a United States citizen. In spite of this utter lack of individualized suspicion, one or more of the John Doe ICE Agents arrested Mr. Ontaneda, apparently for no other reason than his race or
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555000     ooof f     555888     PPPaaagggeeeI IDDD: :     555000
ethnicity, in violation of Mr. Ontaneda’s Fifth Amendment right to equal protection of the laws.
236. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-25 participated in violating the rights of plaintiff Ontaneda, directed the John Doe ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
237. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of the rights of plaintiff Ontaneda; tolerated past or ongoing misbehavior of this kind; or, by permitting and/or encouraging ICE agents to engage in the type of racial profiling that occurred in this case – i.e., the detention of individuals on the basis of their race or ethnicity, without any reason to suspect them of any illegal activity – were deliberately indifferent to the risk that ICE officers would violate the Fifth Amendment equal protection rights of individuals suspected of being undocumented immigrants to the United States.
238. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Ontaneda.
239. As a result of his arrest on the basis of his race or ethnicity alone, plaintiff Juan Ontaneda suffered harms, including but not limited to loss of liberty, humiliation and emotional distress.
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555111     ooof f     555888     PPPaaagggeeeI IDDD: :     555111
240. The actions of defendants Myers, Torres, Weber, Rodriguez, John Doe ICE Agents 1-50, and John Soe ICE Supervisors 1-25 give rise to a cause of action against them under Bivens, supra.
EIGHTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE HOME ENTRY IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
241. Plaintiffs reallege paragraphs 1 through 240, as if fully set forth herein. 242. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 243. By entering the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusion reasonable, one or more of defendant John Loe Penns Grove Officers 1-10 violated the Fourth Amendment rights of plaintiff Carla Roe 3. 244. As a result of this intrusion into her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress. 245. The actions of defendants John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555222     ooof f     555888     PPPaaagggeeeI IDDD: :     555222
NINTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE HOME SEARCH IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
246. Plaintiffs reallege paragraphs 1 through 245, as if fully set forth herein. 247. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 248. By searching the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendant John Loe Penns Grove Officers 1-10 violated the Fourth Amendment rights of plaintiff Carla Roe 3. 249. As a result of this search of her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress. 250. The actions of defendants John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
TENTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE SEIZURE IN VIOLATION OF
THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10) 251. Plaintiffs reallege paragraphs 1 through 250, as if fully set forth herein. 252. Plaintiffs have a constitutionally protected right under the Fourth
Amendment to the United States Constitution to be free from unreasonable seizures.
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555333     ooof f     555888     PPPaaagggeeeI IDDD: :     555333
253. By detaining plaintiff Carla Roe 3 without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such seizure reasonable, one or more of defendant John Loe Penns Grove Officers 1-10 violated the Fourth Amendment rights of plaintiff Carla Roe 3.
254. As a result of her detention, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
255. The actions of defendants John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
ELEVENTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
256. Plaintiffs reallege paragraphs 1 through 255, as if fully set forth herein. 257. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from the use of unreasonable or excessive force. 258. By pushing through the front door of plaintiff Carla Roe 3’s residence with their weapons drawn, shoving her aside upon entry, pointing a gun at her, and repeatedly screaming at her, one or more of defendants John Loe Penns Grove Officers 110 used excessive force against her, and in doing so, violated her Fourth Amendment rights.
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555444     ooof f     555888     PPPaaagggeeeI IDDD: :     555444
259. The actions of defendants John Loe Penns Grove Officers 1-10 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
260. As a result of this excessive force, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
TWELTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR VIOLATION OF SUBSTANTIVE DUE PROCESS
RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10) 261. Plaintiffs reallege paragraphs 1 through 260, as if fully set forth herein. 262. Plaintiffs have a constitutionally protected right under the Fourteenth
Amendment to the United States Constitution to be free from abusive state government conduct that shocks the conscience.
263. By drawing their guns on plaintiff Carla Roe 3, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of defendant John Loe Penns Grove Officers 1-10 violated plaintiff Carla Roe 3’s Fourteenth Amendment substantive due process right to be free from state government abuse that shocks the conscience.
264. As a result of defendants’ conscience-shocking behavior, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
265. The actions of defendant John Loe Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Carla Roe 3.
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555555     ooof f     555888     PPPaaagggeeeI IDDD: :     555555
THIRTEENTH CLAIM: CLAIM FOR UNREASONABLE HOME ENTRY IN VIOLATION OF ARTICLE
I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
266. Plaintiffs reallege paragraphs 1 through 265, as if fully set forth herein. 267. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 268. By entering the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendants John Loe Penns Grove Officers 1-10 violated the rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7. 269. As a result of this intrusion into her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
FOURTEENTH CLAIM: CLAIM FOR UNREASONABLE HOME SEARCH IN VIOLATION OF ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
270. Plaintiffs reallege paragraphs 1 through 269, as if fully set forth herein. 271. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable searches, including unreasonable searches of their homes by government officers. 272. By searching the home of plaintiff Carla Roe 3 without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendants John
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555666     ooof f     555888     PPPaaagggeeeI IDDD: :     555666
Loe Penns Grove Officers 1-10 violated the rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7.
273. As a result of this search of her home, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
FIFTEENTH CLAIM: CLAIM FOR UNREASONABLE SEIZURES IN VIOLATION OF ARTICLE I,
PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
274. Plaintiffs reallege paragraphs 1 through 273, as if fully set forth herein. 275. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable seizures. 276. By detaining plaintiff Carla Roe 3 without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such a seizure reasonable, one or more of defendants John Loe Penns Grove Officers 1-10 violated rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7. 277. As a result of this detention, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
SIXTEENTH CLAIM: CLAIM FOR USE OF EXCESSIVE FORCE IN VIOLATION OF ARTICLE I,
PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
278. Plaintiffs reallege paragraphs 1 through 277, as if fully set forth herein. 279. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from the use of excessive force by government officers.
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555777     ooof f     555888     PPPaaagggeeeI IDDD: :     555777
280. By pushing through the front door of plaintiff Carla Roe 3’s residence with their weapons drawn, shoving her aside upon entry, pointing a gun at her, and repeatedly screaming at her, one or more of defendants John Loe Penns Grove Officers 110 used excessive force against her, and in doing so, violated the rights of plaintiff Carla Roe 3 under New Jersey Const., Art. I, ¶ 7.
281. As a result of the use of excessive force, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty, humiliation and emotional distress.
SEVENTEENTH CLAIM: CLAIM FOR VIOLATION OF FUNDAMENTAL FAIRNESS AND DUE PROCESS OF LAW PROVIDED BY ARTICLE I, PARAGRAPH 1 OF THE NEW
JERSEY CONSTITUTION (On behalf of plaintiff Carla Roe 3 against defendants John Loe Penns Grove Officers 1-10)
282. Plaintiffs reallege paragraphs 1 through 281, as if fully set forth herein. 283. Article I, Paragraph 1 of the New Jersey Constitution provides that “[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” 284. The actions of one or more of defendants John Loe Penns Grove Officers 1-10 in unlawfully entering and searching plaintiff Carla Roe 3’s home, and seizing her, violated her right to be free from unjust, fundamentally unfair, and arbitrary government action. 285. By drawing their guns during the raid of plaintiff Carla Roe 3’s home, pointing a gun at her, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of
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!aaassseee     333: :000888-­-­-cccvvv-­-­-000111666555222-­-­-PPPGGGSSS-­-­-DDDEEEAAA              DDDooocccuuummmeeennnt t     111              FFFi il leeeddd     000444/ /000333/ /000888              PPPaaagggeee     555888     ooof f     555888     PPPaaagggeeeI IDDD: :     555888

defendants John Loe Penns Grove Officers 1-10 further violated plaintiff Carla Roe 3’s

N.J. Const., Art. I, ¶ 1 substantive due process right to be free from government abuse.

286. As a result of the conduct of defendants John Loe Penns Grove Officers 1-

10, plaintiff Carla Roe 3 suffered harms, including but not limited to loss of liberty,

humiliation, and emotional distress.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully request judgment against defendants as

follows:

(a) Compensatory and consequential damages in an amount to be determined at trial;

(b) Punitive damages on all claims allowed by law, in an amount to be determined at trial;

(c) Attorney’s fees and costs associated with this action;

(d) Any further relief as this Court deems just and proper and any other relief as allowed by law.

Plaintiffs demand a trial by jury.

Dated: April 3, 2008

Respectfully submitted,

By: __/s/ Baher Azmy ________________ Baher Azmy, Esq Bassina Farbenblum, Esq. Scott Michelman, Esq. SETON HALL SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, New Jersey 07102-5210 (973) 642-8709 Attorneys for Plaintiffs

R. Scott Thompson, Esq. Scott L. Walker, Esq. Heather Bishop, Esq. LOWENSTEIN SANDLER PC Attorneys At Law 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500 Attorneys for Plaintiffs

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Baher Azmy Mark Noferi L. Danielle Tully Seton Hall School of Law Center for Social Justice 833 McCarter Highway Newark, NJ 07102-5210 (973) 642-8709

R. Scott Thompson Scott L. Walker Natalie J. Kraner Heather C. Bishop Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068 (973) 597-2500

Attorneys for Plaintiffs

MARIA ARGUETA; WALTER CHAVEZ; ANA GALINDO; W.C. by and through his parents Walter Chavez and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS; JUAN ONTANEDA; VERONICA COVIAS; and YESICA GUZMAN,
Plaintiffs,
-vs-
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); JOHN MORTON, Assistant Secretary for Immigration and Customs Enforcement; JULIE L. MYERS, Former Assistant Secretary for Immigration and Customs Enforcement; ALONZO R. PENNA, Deputy Assistant Director for Operations, Immigration and Customs Enforcement; JOHN P. TORRES, Former Deputy Assistant Director for Operations, Immigration and Customs Enforcement; SCOTT WEBER, Director, Office of Detention and Removal Operations, Newark Field Office; BARTOLOME RODRIGUEZ, Former Director, Office of Detention and Removal Operations, Newark Field Office; AGENT 1, AGENT 2, AGENT 3, AGENT 4, AGENT 5, AGENT 6, AGENT 7, AGENT 8, AGENT 9, AGENT 10, AGENT 11, AGENT 12, AGENT 13,

DOCUMENT FILED ELECTRONICALLY
Honorable Peter G. Sheridan, U.S.D.J. Honorable Esther Salas, U.S.M.J. Civil Action No: 2:08-cv-1652
THIRD AMENDED COMPLAINT
JURY TRIAL DEMANDED

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AGENT 14, AGENT 15, AGENT 16, AGENT 17, AGENT 18, AGENT 19, AGENT 20, AGENT 21, AGENT 22, AGENT 23, AGENT 24, AGENT 25, AGENT 26, AGENT 27, AGENT 28, AGENT 29, AGENT 30, AGENT 31; JOHN DOE ICE AGENTS 118; JOHN SOE ICE SUPERVISORS 1-15; Penns Grove Police Officers Carmen Hernandez, Jason Spera, and Joseph DiCarolis (sued in their Individual Capacities),
Defendants. Plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C. (by and through his parents Walter Chavez and Ana Galindo), Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman, (collectively “plaintiffs”) by their attorneys, the Seton Hall School of Law Center For Social Justice and Lowenstein Sandler PC, for their Complaint allege as follows:
INTRODUCTION 1. This is a civil rights action raising constitutional claims under the Fourth and Fifth Amendment against federal officials pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against state officials pursuant to 42 U.S.C. § 1983 and the New Jersey Constitution, for their participation in a practice of unlawful and abusive raids of immigrant homes across the state of New Jersey. The practice flourished as a predictable consequence of the Department of Homeland Security’s arbitrary, exponentially-increased quotas for the arrest of immigrants with old deportation orders, and amidst the escalation of a program the Department (“DHS”) calls “Operation Return to Sender.” Under pressure from these quotas, immigration agents have regularly disregarded the obligation to secure a judicial warrant or probable cause in carrying out unlawful entries and dragnet searches of homes in which the agents only loosely suspect immigrant families may reside.
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2. Plaintiffs in this case are all victims of these unconstitutional home raid practices. They include United States citizens and lawful residents. Each plaintiff was present in his or her home in the pre-dawn hours of the morning, when a team of federal agents gained unlawful entry, through deceit or, in some cases, raw force. Agents swept throughout the homes, ordered sleeping people – including, in some cases, children – out of bed, and detained the occupants without judicial warrant or other legal justification.
3. Some of the plaintiffs were subjected to physical or verbal abuse; others were threatened or had firearms pointed at them. At least one plaintiff was forcibly prevented from contacting counsel. At least one of them was subsequently arrested despite having papers – which the arresting agents refused even to look at – reflecting her legal status. Each plaintiff has suffered and continues to suffer from the effects of that abusive conduct.
4. Plaintiffs’ experiences are typical of the “Operation Return to Sender” home raid modus operandi throughout the state and the nation, which has been comprehensively documented through media reports and first-hand accounts from other victims. The execution of these raids in New Jersey illustrates how “Operation Return to Sender” has extended far beyond its stated goal of apprehending individuals with outstanding deportation orders – persons Immigration and Customs Enforcement (“ICE”) calls “fugitives.” ICE statistics reveal that as few as one in three individuals arrested in “Operation Return to Sender” in New Jersey is actually a “fugitive” in alleged violation of a deportation order. Instead, the large majority – euphemistically called “collateral arrests” – are individuals merely swept up in the recent dragnets. Agents regularly raid homes where the purported “fugitive” target is not present, and could not reasonably have
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been believed to have been present. According to a recent report by DHS’s Inspector General, agents rely on data that is outdated and inaccurate in up to 50% of cases.
5. Despite aggressively increasing the arrest quotas and the number of agents participating in “Operation Return to Sender,” and thereafter being notified – via press reports, lawsuits, and congressional testimony – of the widespread allegations of unconstitutional and abusive conduct by ICE agents as part of this program, the DHS supervisory officials named in this Complaint have continued to foster an institutional culture of lawlessness. Specifically, they have failed to develop meaningful guidelines or oversight mechanisms to ensure that home arrests are conducted within constitutional limits, to provide the agents involved with adequate training (or for some newer agents, any training) on the lawful execution of fugitive operations, or otherwise ensured accountability for the failure to conduct fugitive operations within constitutional limits. On the contrary, on many occasions, DHS supervisory officials have proudly publicized the increasing numbers of arrests made as a result of the unconstitutional raids that continue to be carried out in the shadows and the dark of night.
6. The Constitution constrains the actions of government officials in every domain and protects citizens and non-citizens equally from unreasonable searches, seizures, and incursions into their homes. In this action, the plaintiffs seek to hold responsible those who conducted, directed, and sanctioned the complained-of conduct, all of which violated clearly established constitutional protections.
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JURISDICTION AND VENUE 7. This Court has jurisdiction over this federal civil rights action pursuant to 28 U.S.C. §§ 1331 & 1343(a)(3). Supplemental jurisdiction over pendant state law claims is proper pursuant to 28 U.S.C. § 1367. 8. Venue lies in this District pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims occurred here, and also under 28 U.S.C. § 1391(e)(3) because defendants include federal officers acting under color of legal authority, at least one of the plaintiffs resides in this district, and no real property is involved in this action.
PARTIES The Plaintiffs 9. Plaintiff MARIA ARGUETA is of Latino origin, and has held lawful Temporary Protection Status in the United States since 2001. At all times relevant to this action she was a resident of North Bergen, New Jersey. 10. Plaintiff WALTER CHAVEZ is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action he was a resident of Paterson, New Jersey. 11. Plaintiff ANA GALINDO is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action she was a resident of Paterson, New Jersey. 12. Plaintiff W.C., is the nine-year old son of plaintiffs Walter Chavez and Ana Galindo, and is a United States citizen. At all times relevant to this action he was a resident of Paterson, New Jersey.
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13. Plaintiff ARTURO FLORES is of Latino origin and is a United States citizen. At all times relevant to this action he was a resident of Clifton, New Jersey.
14. Plaintiff BYBYANA ARIAS is of Latino origin and is a United States citizen. At all times relevant to this action she was a resident of Clifton, New Jersey.
15. Plaintiff JUAN ONTANEDA is of Latino origin. At all times relevant to this action he was a resident of Newark, New Jersey.
16. Plaintiff VERONICA COVIAS is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action she was a resident of Paterson, New Jersey.
17. Plaintiff YESICA GUZMAN is of Latino origin and is a lawful permanent resident of the United States. At all times relevant to this action she was a resident of Salem County, New Jersey.
The Federal Defendants 18. Defendant IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”) is a bureau of the United States Department of Homeland Security (“DHS”). ICE is charged with investigative and enforcement responsibilities with respect to federal immigration law. ICE is headquartered in Washington, D.C. 19. Defendant JOHN MORTON is the Assistant Secretary for Homeland Security for Immigration and Customs Enforcement, located in Washington, D.C. Defendant Morton is sued only for injunctive relief in his official capacity. 20. Defendant JULIE L. MYERS is the former Assistant Secretary for Homeland Security for Immigration and Customs Enforcement, located in Washington, D.C. Defendant Myers was, at all times relevant to this action, charged with the
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constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of ICE. Defendant Myers is sued for damages in her individual capacity. ICE press releases describing arrests in New Jersey under Operation Return to Sender have repeatedly stated that those arrests were made pursuant to the nationwide interior immigration enforcement strategy announced by defendant Myers and Michael Chertoff, Secretary of the Department of Homeland Security.
21. Defendant ALONZO R. PENA is the Deputy Assistant Secretary for Operations for ICE, located in Washington D.C. Defendant Pena is sued only for injunctive relief in his official capacity.
22. Defendant JOHN P. TORRES is the former Deputy Assistant Secretary for Operations for ICE, and the former Director of the ICE Office of Detention and Removal Operations (“DRO”), in Washington, D.C. DRO is the branch of ICE that coordinates the removal of foreign nationals not entitled to remain in the country. As Director, defendant Torres was, at all times relevant to this action, responsible for overseeing the apprehension, detention and removal of foreign nationals charged with violating federal immigration law. He was, at all times relevant to this action, also responsible for the supervision of law enforcement officers assigned to DRO field offices, including the Newark, New Jersey office. Defendant Torres was, at all times relevant to this action, responsible for the supervision and oversight of Fugitive Operations Teams. Defendant Torres is sued for damages in his individual capacity.
23. Defendant SCOTT WEBER is the Director of the DRO Field Office in Newark, New Jersey. Defendant Weber is responsible for managing ICE enforcement
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activities in New Jersey, including the implementation of Operation Return to Sender by Fugitive Operations Teams. Defendant Weber is sued for damages in his individual capacity and for injunctive relief in his official capacity.
24. Defendant BARTOLOME RODRIGUEZ is the former Acting Field Office Director for the DRO Field Office in Newark, New Jersey. In that role, defendant Rodriguez was responsible for managing ICE enforcement activities in New Jersey, including the implementation of “Operation Return to Sender” by Fugitive Operations Teams, in or around February-May 2007. Defendant Rodriguez remains employed with the Newark DRO Field Office. Defendant Rodriguez is sued for damages in his individual capacity.
25. Defendant AGENT 1 is an Immigration Enforcement Agent employed by ICE. Upon information and belief, Agent 1 was personally involved in the ICE home raid on the residence of Arturo Flores and Bybyana Arias in Clifton, New Jersey on November 13, 2006. Agent 1 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
26. Defendant AGENT 2 is a Deportation Officer employed by ICE. Upon information and belief, Agent 2 was personally involved in the ICE home raids on the residences of: (1) Maria Argueta in North Bergen, New Jersey on January 29, 2008; and (2) Arturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008. Agent 2 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
27. Defendant AGENT 3 is a Deportation Officer employed by ICE. Upon information and belief, Agent 3 was personally involved in the ICE home raid on the
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residence of Arturo Flores and Bybyana Arias in Clifton, New Jersey on November 13, 2006. Agent 3 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
28. Defendant AGENT 4 is a Deportation Officer employed by ICE. Upon information and belief, Agent 4 was personally involved in the ICE home raids on the residences of: (1) Maria Argueta in North Bergen, New Jersey on January 29, 2008; and (2) Auturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008. Agent 4 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
29. Defendant AGENT 5 is a Supervisory Detention and Deportation Officer employed by ICE. Upon information and belief, Agent 5 was personally involved in the ICE home raid on the residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 5 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
30. Defendant AGENT 6 is a Deportation Officer employed by ICE. Upon information and belief, Agent 6 was personally involved in the ICE home raid on the residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 6 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
31. Defendant AGENT 7 is a Deportation Officer employed by ICE. Upon information and belief Agent 7, was personally involved in the ICE home raid on the residence of Juan Ontaneda in Newark, New Jersey on December 7, 2007. Agent 7 is
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sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
32. Defendant AGENT 8 is a Deportation Officer employed by ICE. Upon information and belief, Agent 8 was personally involved in the ICE home raids on the residences of: (1) Maria Argueta in North Bergen, New Jersey on January 29, 2008, and (2) Arturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008. Agent 8 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
33. Defendant AGENT 9 is a Supervisory Detention and Deportation Officer employed by ICE. Upon information and belief, Agent 9 was personally involved in the ICE home raid on the residence of Veronica Covias in Paterson, New Jersey on March 28, 2007. Agent 9 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
34. Defendant AGENT 10 is an Immigration Enforcement Agent employed by ICE. Upon information and belief, Agent 10 was personally involved in the ICE home raid on the residence of Veronica Covias in Paterson, New Jersey on March 28, 2007. Agent 10 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
35. Defendant AGENT 11 is a Deportation Officer employed by ICE. Upon information and belief, Agent 11 was personally involved in the ICE home raid on the residence of Juan Ontaneda in Newark, New Jersey on December 7, 2007. Agent 11 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
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36. Defendant AGENT 12 is a Supervisory Detention and Deportation Officer employed by ICE. Upon information and belief, Agent 12 was personally involved in the ICE home raid on the residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 12 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
37. Defendant AGENT 13 is an Immigration Enforcement Agent employed by ICE. Upon information and belief, Agent 13 was personally involved in the ICE home raid on the residence of Juan Ontaneda in Newark, New Jersey on December 7, 2007. Agent 13 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
38. Defendant AGENT 14 is a Supervisory Detention and Deportation Officer employed by ICE. Upon information and belief, Agent 14 was personally involved in the ICE home raids on the residences of: (1) Maria Argueta in North Bergen, New Jersey on January 29, 2008; (2) Arturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008; (3) Arturo Flores and Bybyana Arias in Clifton, New Jersey on November 13, 2006, and (4) Veronica Covias in Paterson, New Jersey on March 28, 2007. Agent 14 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
39. Defendant AGENT 15 is a Deportation Officer employed by ICE. Upon information and belief, Agent 15 was personally involved in the ICE home raid on the residence of Arturo Flores and Bybyana Arias in Clifton, New Jersey on November 13, 2006. Agent 15 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacities.
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40. Defendant AGENT 16 is a Deportation Officer employed by ICE. Upon information and belief, Agent 16 was personally involved in the ICE home raids on the residences of: (1) Maria Argueta in North Bergen, New Jersey on January 29, 2008; and (2) Arturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008. Agent 16 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
41. Defendant AGENT 17 is a Supervisory Detention and Deportation Officer employed by ICE. Upon information and belief, Agent 17 was personally involved in the ICE home raid on the residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 17 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
42. Defendant AGENT 18 is a Deportation Officer employed by ICE. Upon information and belief Agent 18, was personally involved in the ICE home raid on the residence of Juan Ontaneda in Newark, New Jersey on December 7, 2007. Agent 18 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
43. Defendant AGENT 19 is a Deportation Officer employed by ICE. Upon information and belief, Agent 19 was personally involved in the ICE home raid on the residence of Arturo Flores and Bybyana Arias in Clifton, New Jersey on November 13, 2006. Agent 19 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
44. Defendant AGENT 20 is a Deportation Officer employed by ICE. Upon information and belief, Agent 20 was personally involved in the ICE home raid on the
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residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 20 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
45. Defendant AGENT 21 is a Deportation Officer employed by ICE. Upon information and belief, Agent 21 was personally involved in the ICE home raid on the residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 21 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
46. Defendant AGENT 22 is a Public Affairs Officer employed by ICE. Upon information and belief, Agent 22 was personally involved in the ICE home raid on the residence of Arturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008. Agent 22 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
47. Defendant AGENT 23 is a Deportation Officer employed by ICE. Upon information and belief, Agent 23 was personally involved in the ICE home raid on the residence of Arturo Flores and Bybyana Arias in Clifton, New Jersey on November 13, 2006. Agent 23 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
48. Defendant AGENT 24 is a Deportation Office employed by ICE. Upon information and belief, Agent 24 was personally involved in the ICE home raid on the residence of Veronica Covias in Paterson, New Jersey on March 28, 2007. Agent 24 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
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49. Defendant AGENT 25 is a Deportation Officer employed by ICE. Upon information and belief, Agent 25 was personally involved in the ICE home raids on the residences of: (1) Maria Argueta in North Bergen, New Jersey on January 29, 2008; (2) Arturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008; and (3) Arturo Flores and Bybyana Arias in Clifton, New Jersey on November 13, 2006. Agent 25 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
50. Defendant AGENT 26 is a Immigration Enforcement Agent employed by ICE. Upon information and belief, Agent 26 was personally involved in the ICE home raids on the residences of: (1) Maria Argueta in North Bergen, New Jersey on January 29, 2008; and (2) Arturo Chavez, Ana Galindo and W.C. in Paterson New Jersey on April 2, 2008. Agent 26 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
51. Defendant AGENT 27 is a Deportation Officer employed by ICE. Upon information and belief, Agent 27 was personally involved in the ICE home raid on the residence of Juan Ontaneda in Newark, New Jersey on December 7, 2007. Agent 27 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
52. Defendant AGENT 28 is a Supervisory Detention and Deportation Officer employed by ICE. Upon information and belief, Agent 28 was personally involved in the ICE home raid on the residence of Juan Ontaneda in Newark, New Jersey on December 7, 2007. Agent 28 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
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53. Defendant AGENT 29 is a Supervisory Detention and Deportation Officer employed by ICE. Upon information and belief, Agent 29 was personally involved in the ICE home raid on the residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 29 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
54. Defendant AGENT 30 is a Deportation Officer employed by ICE. Upon information and belief, Agent 30 was personally involved in the ICE home raid on the residence of Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. Agent 30 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
55. Defendant AGENT 31 is a Deportation Officer employed by ICE. Upon information and belief, Agent 31 was personally involved in the ICE home raid on the residence of Veronica Covias in Paterson, New Jersey on March 28, 2007. Agent 31 is sued for damages in his or her individual capacity and for injunctive relief in his or her official capacity.
56. Agents 2, 4, 8, 14, 16, 25, and 26 shall collectively be referred to as “Argueta Raid ICE Agents.”
57. Agents 2, 4, 8, 14, 16, 22, 25, and 26 shall collectively be referred to as “Chavez Raid ICE Agents.”
58. Agents 1, 3, 14, 15, 19, 23, and 25 shall collectively be referred to as “Flores Raid Agents.”
59. Agents 7, 11, 13, 18, 27, and 28 shall collectively be referred to as “Ontaneda Raid ICE Agents.”
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60. Agents 9, 10, 14, 24, and 31 shall collectively be referred to as “Covias Raid ICE Agents.”
61. Agents 5, 6, 12, 17, 20, 21, 29, and 30 shall collectively be referred to as “Guzman Raid ICE Agents.”
62. At all times relevant to the incidents complained of in this action, defendants JOHN SOE ICE SUPERVISORS 1-15 were federal agents employed by ICE. They are responsible for carrying out and supervising the policies and practices of ICE, including the execution of Operation Return to Sender, and are sued for damages in their individual capacities and for injunctive relief in their official capacities. Upon information and belief, each John Soe ICE Supervisor defendant is responsible for the injuries and damages suffered by at least one plaintiff as a result of the acts alleged in this Complaint.
63. Plaintiffs are unaware of the true names of, total numbers of, and positions held by defendants John Soe ICE Supervisors, and therefore sue those defendants by fictitious names. Plaintiffs will amend their Complaint to state the true names of these defendants after those names have been ascertained.
64. In committing the acts alleged in this Complaint, defendants John Soe ICE Supervisors were acting on behalf of ICE. Upon information and belief, defendants Agents 1-31 were acting under the immediate supervision of John Soe ICE Supervisors pursuant to the authorization of defendants Myers, Torres, Weber, and/or Rodriguez.
The Penns Grove Defendants 65. Defendant Sergeant Carmen Hernandez (“Sergeant Hernandez”) was, on information and belief, at all times relevant to the incidents complained of in this action,
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an officer of the Penns Grove Police Department. He participated in the raid on the home of plaintiff Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. He is sued in his individual capacity.
66. Defendant Patrolman Jason Spera (“Patrolman Spera”) was, on information and belief, at all times relevant to the incidents complained of in this action, an officer of the Penns Grove Police Department. He participated in the raid on the home of plaintiff Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. He is sued in his individual capacity.
67. Defendant Patrolman Joseph DiCarolis (“Patrolman DiCarolis”) was, on information and belief, at all times relevant to the incidents complained of in this action, an officer of the Penns Grove Police Department. He participated in the raid on the home of plaintiff Yesica Guzman in Penns Grove, New Jersey on August 1, 2006. He is sued in his individual capacity.
68. Sergeant Hernandez, Patrolman Spera, and Patrolman DiCarolis shall collectively be referred to as “Penns Grove Officers.”
FACTUAL BACKGROUND ICE Fugitive Operations in New Jersey 69. Since 2002, the ICE Office of Detention and Removal Operations (“DRO”) has overseen ICE’s National Fugitive Operation Program,1 established to arrest and remove so-called immigration “fugitives.” ICE defines “fugitives” as individuals with outstanding deportation orders or individuals who failed to report to a DRO officer

1

The DRO was then a division of the Immigration and Naturalization Service

(“INS”). In 2003, when the INS was abolished and ICE was created in its place, the

DRO became a division of ICE.

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after receiving notice to do so. ICE implements the Fugitive Operations Program through Fugitive Operations Teams (“FOTs”) tasked with apprehending immigration fugitives.
70. Since 2006, the Fugitive Operations Program has substantially escalated its enforcement practices. At the end of Fiscal Year (“FY”) 2007, there were 75 FOTs nationwide, a five-fold increase over the number of teams in 2005. Congress has authorized funding for 29 additional teams in FY 2008. Since mid-2006, there have been four FOTs in the state of New Jersey (doubled from two FOTs at the beginning of 2005).
71. On January 31, 2006, each FOT in the country was ordered to arrest 1,000 fugitive aliens per year. This quota represented an 800% increase on the previous quota of 125 arrests per year, mandated just two years earlier.
72. On May 26, 2006, ICE commenced its “Operation Return to Sender,” an operation directed at arresting “fugitive” aliens, prioritizing the arrest of individuals possessing criminal records.
73. Following the commencement of Operation Return to Sender and the implementation of the 1,000-arrests quota, the number of individuals arrested by New Jersey FOTs doubled from 1,094 in FY 2006 to 2,079 in FY 2007.
Unlawful Home Raids Practices Unlawful Entry
74. A typical home raid is conducted in the pre-dawn hours of the morning. Multiple ICE agents surround a home believed to house one or more immigrant families. The agents pound furiously on the door and/or windows.
75. The agents and their supervisors use a variety of tactics – frequently deceptive and/or coercive – to cause an occupant to open the door. In many raids, the
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agents shout “Police!” or, in some cases, enlist a local police officer to deceive occupants about the ICE agents’ identities. ICE agents are not, in fact, police officers; rather, they are administrative officers authorized to enforce the federal immigration laws. Because ICE officers do not usually have the general criminal search and arrest powers of police officers, the assertion that they are “police” misrepresents not only their identity but also the scope of their legal authority. This misrepresentation is especially significant to immigrant populations, who have been encouraged by New Jersey state officials to assist local police without fear of immigration consequences.
76. In other raids, an occupant simply opens the door in response to the pounding, assuming an emergency. Once the door is opened, the agents enter the home, without properly identifying themselves, and without obtaining an occupant’s consent. If the agents do not have a clear path of entry, they frequently forcibly push in the door and the individual who opened it. It has been reported that agents have even broken down doors to gain entry.
77. Some of the ICE agents involved in Operation Return to Sender treat the raids as a perverse sport. For example, in an April 30, 2007 email obtained under a Freedom of Information Act Request, a Connecticut ICE agent boasted to a state police officer, “We have an [operation] scheduled for Wed, 05/02/07 in New Haven . . . [I]f you’re interested we’d love to have you! We have 18 addresses – so it should be a fun time!! Let me know if you guys can play!!” (A copy of the email, obtained through a Connecticut Freedom of Information request, is attached as Exhibit A.)
78. For many ICE agents, deceit and dishonesty are regularized as part of the home raids practice. For example, according to a report from the Freehold, New Jersey
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Police Department, an ICE Team Leader told a local police officer that he and five members of his team surrounded a Brazilian family’s home at 6:00 a.m., but that the family was not opening the door. The ICE official asked the local police officer to have “a Marked Freehold Boro[ugh] Police vehicle pull up [sic] to the house and have a uniformed officer knock and have the accused family come to the door. Once someone was to come to the door ICE would take over the investigation.” (A copy of the Freehold Police Department Operations Report, dated August 8, 2007, is attached as Exhibit B.)
Unlawful Seizures 79. Once the door is open, multiple agents typically enter and rapidly sweep through the home, displaying or brandishing firearms as if conducting a high-risk drug sweep. ICE agents on occasion point their guns directly at occupants who, far from posing a genuine threat, are partially undressed or sit terrified in their night clothes. 80. Agents order all of the occupants out of bed and to a central location in the home. Frequently these occupants include children, many of whom are United States citizens. Even though the purported “fugitive” target is frequently unknown to the occupants, the agents interrogate the occupants about their own identities and immigration status, without reasonable basis for believing that they are not United States citizens. In some raids, ICE agents are verbally and physically abusive. 81. In front of children and family members, agents handcuff individuals they suspect are unlawfully present in the United States and order them into a van outside. Often the agents do not allow the arrestees to change out of their bedclothes. They do not tell family members where they are taking their loved ones or how to find them. The agents drive around and repeat this sequence at other homes until their van is filled.
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82. The media has repeatedly documented severe abuses emerging from the ICE raids practice. See e.g., Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. Times, Oct. 3, 2007 (ICE agents conducted home raids wearing cowboy hats and brandishing shotguns and automatic weapons at home occupants including United States citizens and lawful residents); Aaron Nicodemus, Illegal Aliens Arrested in Raid; Feds Nab 15 in Milford, Sunday Telegram (Massachusetts), Dec. 9. 2007, at B1 (ICE agents broke through front door of home in the early morning with guns drawn, forcing occupants to get on the floor and not move); Elizabeth Llorente, Suits: Feds Play Dirty; Immigration Officials Say Raids on Illegals are Within the Law, The Record (Hackensack, N.J.), Jan. 2, 2008 (armed ICE agents show up at homes at 5:00 a.m., bang on doors, kick them in or use ruses to gain entry, then go into people’s bedrooms, rip covers off people in their beds and question them).2
83. The home raids have a devastating effect on children who witness law enforcement agents sweeping through their home with guns, ordering them and their

2

See also Sandra Hernandez, ICE Increases Use of Home Raids, Daily Journal,

Mar. 26, 2008 (ICE agents came to home of immigration attorney, looking for another

person; when attorney closed his door and asked them to leave premises because they

could not produce a search warrant, the agents threatened to break his door down); Nina

Bernstein, Immigrant Workers Caught in Net Cast for Gangs, N.Y. Times, Nov. 25, 2007

(Nassau County police commissioner describing the “cowboy mentality” of ICE agents

who raided Long Island homes, including armed raids on the wrong homes); Sandra

Forester, Immigration Raids Spark Anger in Sun Valley Area: One Family of Legal

Residents Says they were Terrorized. Agents Arrested 21 People, Idaho Statesman, Sept.

21, 2007; Press release, Office of the Mayor of New Haven, Connecticut, June 6, 2007

(describing “federal agents pushing their way into houses, brusquely ordering men,

women and children to common areas, and leading family members and loved ones away

in handcuffs”); Shannon Prather, Immigration Raids, Arrests Trigger Lawsuits, St. Paul

Pioneer Press (Minnesota), Apr. 19, 2007 (ICE agents, wearing bulletproof vests and

armed with guns, pushed their way into homes and terrified children).

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parents to gather together and suddenly handcuffing and dragging away their parents in the middle of the night. The large majority of these children are United States citizens.3
The Arbitrary, Inaccurate, and Pretextual Nature of “Fugitive” Raids 84. The alleged purpose of Operation Return to Sender is the arrest of “fugitives,” with a priority on criminal fugitives. Indeed, in defendant Myers’s 2007 budget presentation to the House Appropriations Committee, she stated that additional FOTs were necessary to “increase the efficiency of ICE immigration enforcement efforts to locate, apprehend, and remove primarily criminal aliens.” The majority of individuals arrested in New Jersey under Operation Return to Sender, however, are neither criminals nor fugitives. Of the 2,079 individuals arrested in New Jersey in FY 2007, 87% had no criminal history. See ICE Press Release, Newark, Dec. 4, 2007. Moreover, ICE statistics reveal that in New Jersey, as few as one in three individuals arrested pursuant to Operation Return to Sender is actually a “fugitive,” as defined by ICE. See ICE Press Releases, Newark, May 1, 2007 (only 75 “fugitives” among 217 arrests from April 9-27, 2007); Apr. 2, 2007 (only 55 “fugitives” among 128 arrests from March 19-30, 2007); Mar. 1, 2007 (only 89 “fugitives” among 220 arrests in January 2007); Nov. 20, 2006 (only 53 “fugitives” among 137 arrests from November 13-20, 2006). 85. The remaining individuals arrested were a mix of undocumented immigrants and, upon information and belief, United States citizens, permanent residents, and visa-holders who have never had any court order, warrant or criminal conviction against them, but who were nevertheless swept up in the “Operation Return to Sender”

3

See Jeffrey S. Passel, Pew Hispanic Center, The Size and Characteristics of the

Unauthorized Migrant Population in the U.S. (2006), http://pewhispanic.org/files/

reports/61.pdf (finding that five out of six families in which at least one parent does not

possess lawful immigration status, have at least one U.S. citizen child).

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dragnet. ICE refers to these individuals – the large majority of those arrested in New Jersey – as “collateral arrests.” This euphemism obfuscates the reality that the search for “fugitives” often serves as a pretext for sweeping up large numbers of immigrants.
86. The accounts of plaintiffs and media reports indicate that in a substantial number of cases, ICE agents conduct home raids without reasonable grounds for believing that the purported target of their search is present in the home being raided. For example, in a series of pre-dawn warrantless raids on February 19, 2008 in Passaic, New Jersey, ICE acknowledged that its agents raided 13 homes in search of only six individuals.4 ICE agents returned with 12 arrestees.
87. On February 13, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law held a hearing on ICE’s detention and deportation of United States citizens in its home raids and other enforcement activities. An ICE representative acknowledged at that hearing that United States citizens have been wrongfully detained and even deported.5 The chair of the subcommittee remarked after the hearing that the United States had reached an era “where an overzealous government is interrogating, detaining and deporting its own citizens while treating non-citizens even worse.”
88. Compounding the deliberate pretextual use of “fugitive” searches to arrest undocumented immigrants, much of the information in the database that ICE agents

4

Meredith Mandell, Immigration raid raises questions about Passaic's 'safe haven'

status, NJ Herald News, Mar. 12, 2008; see also Nina Bernstein, Immigrant Workers

Caught in Net Cast for Gangs, N.Y. Times, Nov. 25, 2007 (Nassau County police

commissioner describing the “cowboy mentality” of ICE agents who raided Long Island

homes, including armed raids on the wrong homes).

5

Eunice Moscoso, House panel questions U.S. immigration raids, Austin

American Statesman, Feb. 16, 2008. Marisa Taylor, Feds admit jailing citizens as illegal

immigrants, Houston Chronicle, Feb. 14, 2008.

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purportedly rely on to locate fugitives is outdated, inaccurate, and incomplete. In March 2007, the DHS Office of Inspector General publicly criticized ICE for its incomplete and inaccurate background information, understaffing, and incomplete training. The Inspector General’s detailed report on the Fugitive Operations Program, attached as Exhibit C, noted that:
(a) the DRO database that FOTs rely on contains inaccurate and incomplete information on fugitive aliens; a veteran analyst of the database estimated that 50% of the data is inaccurate;
(b) data was not reconciled with other federal databases to establish the validity of identity and background information on any particular fugitive;
(c) in 2006, DRO began hiring lower-level, less experienced officers for fugitive operations; and
(d) some fugitive operations agents have not completed the Fugitive Operations Training Program – 2004 guidelines allow the agents to work for up to two years before receiving the necessary training. 89. The raids on plaintiffs’ homes exemplify the extraordinary level of inaccuracy.
Raids on Individual Plaintiffs’ Homes Maria Argueta
90. Plaintiff Maria Argueta has had valid Temporary Protection Status since 2001, allowing her to remain lawfully in the United States for the duration of that status.
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91. On January 29, 2008, Maria was asleep in her home, the ground-floor apartment in a building in North Bergen, New Jersey. There were other tenants living in separate apartments on the basement and second-floor levels.
92. At or around 4:30 a.m., Maria was awakened by very loud banging on the door and windows of her building. The banging was so aggressive Maria thought the people were going to break the windows and the door. Maria was very frightened and did not open the door.
93. Upon information and belief, the basement tenants opened the door to their apartment and were confronted by Argueta Raid ICE Agents. The agents identified themselves as police, which they were not, and claimed they were looking for a criminal.
94. Upon information and belief, the basement tenants telephoned the landlord of the residence, who was Maria’s brother, and handed the telephone to one or more Argueta Raid ICE Agents. Upon information and belief, the agents told Maria’s brother that they were police officers searching for a male criminal and that they needed to search the ground floor apartment of the residence. Maria’s brother then telephoned Maria and told her that police officers who were searching for a male criminal were outside and needed access to her apartment.
95. After this call, Maria opened her front door to the Argueta Raid ICE Agents. The agents wore vests with the word “police” printed on them and visibly displayed holstered firearms. Maria saw one woman among them.
96. Having deceived Maria as to their purpose, these Argueta Raid ICE Agents entered Maria’s apartment without voluntary informed consent, probable cause,
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or exigent circumstances. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of Maria’s home.
97. Once inside Maria’s apartment, the agents identified themselves as police and claimed they were looking for a particular man. Maria told the agents she did not know that man. There was no reasonable basis to suspect the man lived in the apartment, since no man had lived in the apartment in the seven years that Maria had lived here.
98. Without voluntary informed consent, probable cause, or exigent circumstances, the Argueta Raid ICE Agents searched Maria’s entire apartment, entering all the rooms and looking inside closets and underneath beds. Upon information and belief, the agents did not possess a valid judicial warrant for the search of the home.
99. During the time that the agents were in her home, Maria felt as if she was not free to leave the apartment because the agents followed her throughout the house – even as she went to the bathroom and got changed out of her night clothes – and there were three officers blocking the front door to the apartment during the raid.
100. One or more of the Argueta Raid ICE Agents asked Maria about her immigration status. Maria attempted to explain that she had been granted Temporary Protection Status and was waiting to receive her new TPS card in the mail.
101. Maria provided the agents with documents confirming the TPS grant. The agents threw the documents aside without looking at them. They told her she would not be receiving her TPS card that year.
102. Maria’s TPS status was easily verifiable in the publicly-accessible United States Citizenship and Immigration Service database.
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103. One or more of the Argueta Raid ICE Agents asked Maria for identification. She presented her Salvadoran passport, which the agents confiscated and have never returned to her. As a result of this seizure, Maria had to later go to the Salvadoran consulate to obtain a new passport, at her own expense and inconvenience.
104. At the conclusion of their search, Argueta Raid ICE Agents arrested Maria, without a warrant or reasonable belief that she was unlawfully present in the United States and in spite of clear and easily-verifiable evidence to the contrary.
105. A female ICE agent taunted Maria, telling her to put on clothes with long sleeves because where she was going there would be a lot of men.
106. Maria told the agents that her brother was going to get her an attorney to obtain her release from custody. One or more of the Argueta Raid ICE Agents refused to allow her speak with an attorney after she stated that her brother would secure one for her, and mockingly told Maria not to bother because even with an attorney’s help she would never be released. Maria was handcuffed and led to a waiting car.
107. One or more of the Argueta Raid ICE Agents transported Maria to an ICE facility in Elizabeth, New Jersey, where several ICE agents laughed at and humiliated her by mockingly singing a popular Latino song entitled “Maria has Gone.”
108. Later that day, Maria was transferred to a different ICE facility in Newark, where she was placed in a windowless office with several other women, before being transferred to a jail in Jersey City.
109. Maria did not receive any food or water until 7:00 a.m. the next morning, over 24 hours after she was arrested.
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110. Maria was finally released at 3:00 p.m. on January 30, almost 36 hours after she was arrested.
111. During the entire period of her detention, nobody explained to Maria why she was being detained, or why she was transferred between facilities. She was released without explanation or apology, without her wrongfully-taken passport, and without her jewelry that ICE agents confiscated from her in detention.
Walter Chavez, Ana Galindo, and W.C. 112. Walter Chavez and Ana Galindo have lived in the United States for approximately 28 years and are lawful permanent residents. Their nine-year-old son, W.C., is a United States citizen. Walter and Ana own a home in Paterson, New Jersey, where they lived at all times relevant to this action. 113. On the morning of April 2, 2008, at approximately 7:15 am, Walter was returning to his home to pick up something for work when six or more unmarked vehicles converged on his house. Two defendant Chavez Raid ICE Agents emerged from one of the vehicles and ran up to Walter’s vehicle. One of them grabbed Walter by the shirt collar and pulled him out. Without identifying themselves, they demanded his name. Walter told them his name. 114. The agents asked to see Ana Galindo. They then physically pushed Walter with their hands toward the front door of his home. Walter asked them why they wanted his wife. One of the Chavez Raid ICE Agents replied, “We’ll tell you when you’re inside. Don’t make things harder. Just tell me where she is.” 115. As the agents pushed Walter up to his front door, one of the Chavez Raid ICE Agents said to Walter, “If you don’t open the door, we’re going to make things
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worse.” The officers made Walter open the door and shoved him into the house. At least seven defendant Chavez Raid ICE Agents ran inside the house. Three of the agents prevented anyone from leaving by blocking the front door. More Chavez Raid ICE Agents remained outside. At no point did the agents identify themselves.
116. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home.
117. As he entered his house, Walter called out to his wife who was in the shower, “Ana – the police are looking for you!” Ana ran out of the bathroom and threw a shirt on but did not have time to properly dress. One of the Chavez Raid ICE Agents ran over to Ana and repeatedly yelled at her, “Where are the illegal people?” Another agent repeatedly asked Walter the same question. One of the agents said, “It’s illegal to be hiding illegals. If you don’t tell me where they are, things will get worse. If you don’t tell me where they are, we’ll arrest you.”
118. A female agent asked Ana where her sisters were, what their names were, and what Ana’s last name was. Ana replied that she had two sisters in Guatemala, and gave their names and her own. An agent said, “This is not the person we’re looking for.”
119. Having heard the agents shouting at his parents, W.C. came out of his bedroom and ran to his mother, crying. As he did, several of the Chavez Raid ICE Agents opened their jackets and displayed their guns. Some of the agents wore two guns (one on each hip), along with bulletproof vests and clothing imprinted with the acronym "ICE." Upon seeing the child emerge, at least four agents placed their hands on their guns.
120. One of the agents grabbed his gun and pointed it directly at Ana and W.C.
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121. W.C. saw the guns and continued to cry. As Ana held her terrified son and tried to calm him, an agent came over and screamed in her face again, “Where are the illegal people?”
122. In front of W.C., an agent said to Ana, “If you’re hiding illegal people here, we’re going to take your son and your residency away.” One of the ICE agents guarding the front door was repeatedly pounding one of his fists into an open hand while glaring menacingly at Ana and W.C. Ana told her son to go to his room.
123. The agents demanded that Ana produce identification. When she went to the bedroom to get it, she found her son hiding under the pillows. When she came back to the living area, she showed the agents her New Jersey driver’s license, as well as her and Walter’s green cards, and her son’s United States passport.
124. An agent again accused Ana of hiding illegal immigrants; Ana replied that only she, Walter and their son lived in the house.
125. Throughout the raid, the agents remained in the living room and the hallway to the bedrooms. One of the agents looked through Walter and Ana’s family pictures. Several of the agents’ cars had driven up onto Walter’s lawn, which he had spent much time and effort fixing. At no point did the agents produce a warrant or ask for or obtain permission for anything the agents did, including entering the home.
126. Before leaving, one of the agents directly announced, “We’re going to come back. And next time it will be worse.”
127. W.C. was and remains severely traumatized by the raid. He is so afraid the agents will return and may kill him and his parents, that to this day he refuses to sleep alone in his bedroom and insists on sleeping with his mother. Since the raid, W.C. has
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been shaking and crying in his sleep at night. Once he woke up in the night and told Ana he was too afraid to go back to sleep.
128. Before the raid, W.C. would often play after school, but for many days following the raid he just came home, ate, and went to bed. To this day, he cries often. He often asks Walter and Ana to turn off all the lights and close the shades to prevent the agents from coming back. W.C. is scared when the lights are on in the house. He used to be excited when the doorbell to his house rang; since the raid, he becomes scared every time he hears it. He has asked his father why the agent that was in the doorway, who was pounding his fist into his hand, was looking at him during the raid. W.C. is afraid the agents will do something violent to him or his family.
129. Walter, Ana, and W.C. all continue to be afraid that the agents will return to the house, just as they said they would.
Arturo Flores and Bybyana Arias 130. Plaintiffs Arturo Flores and his stepdaughter Bybyana Arias are both United States citizens. 131. On the morning of November 13, 2006, Arturo, his wife, and his wife’s teenage daughter Bybyana were asleep in their home in Clifton, New Jersey. 132. At or around 3:00 a.m., Arturo was awakened by loud banging on his front door and the sound of his doorbell ringing repeatedly. 133. As he approached the door, he saw four law enforcement officers, who he later learned were defendant Flores Raid ICE Agents, through the window. They were holding flashlights and shouting “Police!”
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134. When Arturo opened the front door slightly, the agents forced the door open, shoved Arturo out of the way, and unlawfully entered the home in the absence of voluntary informed consent, probable cause, or exigent circumstances.
135. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home.
136. The Flores Raid ICE Agents stated that they were looking for a particular individual whom they did not immediately identify.
137. Without seeking permission, and without probable cause or exigent circumstances, the Flores Raid Ice Agents searched all the rooms of Arturo’s home.
138. A female ICE agent entered Bybyana’s bedroom where she was sleeping. Stating that she was “the police,” she shined a flashlight at Bybyana and shouted loudly, ordering Bybyana out of bed. The agents ordered her to the common area, where she was detained in her nightclothes.
139. The agents ordered Arturo to open the door to his bedroom where his wife was still in bed. Without seeking or obtaining permission, the female Flores Raid ICE Agent entered and ordered the wife to the common area, where she was detained.
140. During the time that the agents were in Arturo’s home, none of the occupants were free to leave. One or more of the Flores Raid ICE Agents repeatedly shouted “Don’t move!” at the occupants in the common room. The agents carried holstered firearms. If an occupant moved, the agents placed their hands on their holstered guns, suggesting they were preparing to draw their weapons.
141. The agents interrogated Arturo without any reasonable basis to believe that he was not a United States citizen.
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142. One or more of Flores Raid ICE Agents demanded that Arturo produce identification. He produced a valid driver’s license. The agents transmitted over a radio the information found on his license.
143. After they had searched the home, one or more of the Flores Raid ICE Agents arrested, handcuffed, and led away Arturo’s wife and brother, in front of Bybyana.
144. One or more of the Flores Raid ICE Agents remained in the home for an additional period of time after the search and arrests had been completed.
145. Bybyana was extremely distressed by the raid. She had difficulty eating and sleeping for at least six months after it occurred, and thought about the raid constantly. Her school grades markedly declined during that period.
Juan Ontaneda 146. On the morning of December 7, 2007, plaintiff Juan Ontaneda was living in a multi-family home in Newark, New Jersey. He was renting a room in an apartment with a family consisting of a father, mother, grandfather, and three children. 147. Between 5:30 and 6:00 a.m., Juan was startled by pounding on his front door. The pounding was so loud he feared the door would be knocked down. 148. Believing the person knocking might be another tenant who was locked out, Juan opened the door. He was confronted by six defendant Ontaneda Raid ICE Agents wearing jackets bearing the word “ICE” and displaying holstered firearms. 149. Without identifying themselves, one or more of the Ontaneda Raid ICE Agents showed Juan what appeared to be a computer printout and asked if he knew the
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person pictured on the printout, a man the agents referred to as “Elias.” Juan denied knowing or recognizing the individual that the agents were looking for.
150. Juan attempted to close the door, but several of the Ontaneda Raid ICE Agents physically held the door open.
151. At this time, the owner of the multi-family dwelling came downstairs from the second floor apartment. After speaking with the agents, the landlord told Juan to get the grandfather.
152. When Juan returned to the entryway of his apartment, he discovered that all the Ontaneda Raid ICE Agents had entered the apartment behind him. Upon information and belief, the ICE Agents entered without a judicial warrant, any occupant’s voluntary informed consent, and in the absence of probable cause or exigent circumstances.
153. While detaining the occupants of the house, a number of the Ontaneda Raid ICE Agents interrogated the grandfather about his immigration status.
154. While detaining Juan in the kitchen, the agents demanded identification. Juan produced his valid North Carolina driver’s license.
155. None of the Ontaneda Raid ICE Agents asked Juan at that time, or at any other time while they were in the home, about his immigration status.
156. The agents contacted other ICE personnel to inquire whether there was an outstanding deportation order for Juan. Upon information and belief, the agents were informed that Juan did not have an outstanding deportation order against him.
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157. Juan heard the agent who had questioned him suggest to other agents that he should not be arrested. However, a second agent, who upon information and belief was senior to the first agent, ordered that Juan be arrested.
158. In the absence of a warrant, probable cause, exigent circumstances, or a reasonable basis for believing that Juan was not a United States citizen or was unlawfully present in the United States, one or more of the defendant Ontaneda Raid ICE Agents arrested Juan.
159. The Ontaneda Raid ICE Agents handcuffed his wrists and ankles and put a belt-cuff around his waist. The agents then escorted Juan to a van waiting outside the home and transported him to the detention facility in Elizabeth, New Jersey.
Veronica Covias 160. Veronica Covias is a lawful permanent resident of the United States. In March 2007, she lived with her husband and son in a two-story home in Paterson, New Jersey. 161. At approximately 4:00 a.m. on or about March 26, 2007, the family awoke to loud, repeated pounding on their front door and shouts of “Paterson Police!” Veronica went downstairs and opened the door a crack, thinking that there was an emergency. At the door were several defendant Covias Raid ICE Agents. She asked what they wanted. 162. Defendants Covias Raid ICE Agents stated that they just wanted to talk to Veronica. Veronica asked if they had a warrant. The agents did not answer her question, instead repeating they “just want to talk to her.” Before Veronica could respond, a Covias Raid ICE Agent put his foot in the crack of the door, pushed the door open, and
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forced his way into the home. Veronica did not give voluntary, informed consent to this entry. Upon information and belief, the agents did not possess a judicial warrant.
163. Four or five Covias Raid ICE Agents entered into the home, displaying batons. They wore uniforms with “ICE” printed on the back.
164. Without seeking or obtaining consent, two Covias Raid ICE Agents searched each room on the first floor of the home. The female agent detained Veronica, and two other agents went upstairs.
165. Veronica asked the agents if she could go upstairs to look after her husband who was sick in bed. An agent told her she had to remain detained on the first floor and could not go to see him. The agent stated that they would take her husband “as he is.” She heard the agents yelling at her son upstairs.
166. Veronica then saw her son coming down the stairs handcuffed at his wrists and ankles. She begged the agents repeatedly to tell her where they were taking her son. They refused to answer. She pleaded for permission to hug her son goodbye, but the agents pushed her aside and took her son outside to an unmarked van. They prevented Veronica from running out of the house after her son by closing the door on her.
167. After being held in solitary confinement for approximately three days in Georgia, Veronica’s son was deported.
Yesica Guzman 168. Yesica Guzman lived in Salem County, New Jersey with her husband, three U.S.-citizen children, and several other relatives.
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169. At approximately 3:00 a.m. one day in August 2006, Yesica and her husband, asleep in their home, awoke to loud knocking on their door. The individuals outside repeatedly yelled “Open the front door!” Yesica responded “no.”
170. Eventually, Yesica’s husband walked down the steps to the front door and opened it to see what the callers wanted. Yesica saw one or more of the Guzman Raid ICE Agents and Penns Grove Officers, who were wearing bullet-proof vests and carrying guns.
171. Yesica recognized among the law enforcement officials a female Spanishspeaking local police officer from the Penns Grove Police Department. In addition, upon information and belief, Yesica’s husband recognized a black male local police officer from the Penns Grove Police Department.
172. Guzman Raid ICE Agents and Penns Grove Officers told Yesica’s husband that they were looking for a particular individual, who was Yesica’s brother. Without waiting for a response, the agents pushed the husband up the stairs and shoved him into the kitchen counter inside the home. They also shoved Yesica out of the way. All Guzman Raid ICE Agents and Penns Grove Officers had their guns drawn when they entered the home. All agents kept their guns drawn for the duration of the raid, except for the local police officer that Yesica recognized, who holstered it once she saw Yesica. Neither Yesica nor her husband gave consent to the defendants’ entry of their home. Several Guzman Raid ICE Agents or Penns Grove Officers remained outside.
173. Once inside the home, a Guzman Raid ICE Agent handcuffed the husband and again asked where Yesica’s brother was. The husband replied that he had been deported two to three years earlier. Upon information and belief, a minimal search of
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DHS records would have revealed that the brother had already been deported. It was unreasonable for the agents to believe that the brother would be in the house.
174. A Guzman Raid ICE Agent called for back-up and additional Guzman Raid ICE Agents came into the home. Numerous law enforcement officers remained outside around the perimeter of the home.
175. Upon information and belief, the agents did not possess a valid judicial warrant that would justify the entry and subsequent search of the home. Nevertheless, the agents, lacking probable cause or exigent circumstances, detained Yesica on the couch in an intimidating manner, with one or more agents pointing their guns at her and indicating that she was not free to leave. The agents repeatedly asked whether Yesica or her husband had weapons or drugs. Both Yesica and her husband replied “no” each time. The agents also told Yesica and her husband to identify the other people living in the home.
176. The agents proceeded to search the entire home without voluntary informed consent, probable cause, or exigent circumstances. On information and belief, upon encountering Yesica’s sleeping relative, one agent put a gun to his head and shouted “Wake up!” The agents handcuffed several of Yesica’s relatives and brought them into the common area.
177. Yesica begged the agents not to go into her children’s bedrooms because she did not want them to be frightened. Against her pleas, the agents searched inside both rooms where her U.S.-citizen children were sleeping.
178. When Yesica tried to ask the agents questions, they refused to answer. They repeatedly screamed “Shut up!” at her and other occupants of the house.
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179. One or more of the Guzman Raid ICE Agents asked Yesica for identification. She presented her Mexican passport, which the agents confiscated and have never returned to her. As a result of this seizure, Yesica had to later go to the Mexican consulate to obtain a new passport, at her own expense and inconvenience.
180. A Guzman Raid ICE Agent threatened Yesica that if she did not go to “the office” she would be deported to Mexico and that the state would take her children. In addition, the agent said he would make it his “personal mission” to ensure her husband went to jail for 22 years for crossing the border. The agents then arrested her husband, and two other occupants of the house. All three were subsequently deported.
The Pervasiveness of ICE Raids Practices 181. The nationwide pattern and practice of unlawful raids of the type plaintiffs experienced has been the subject of widespread media reporting as well as multiple lawsuits filed in other federal district courts. See, e.g., Barrera v. Boughton, No. 07-cv1436 (D. Conn. Sept. 26, 2007); Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sep. 20, 2007); Flores-Morales v. George, No. 07-cv-0050 (M.D. Tenn. July 5, 2007); Reyes v. Alcamtar, No. 07-cv-2271 (N.D. Cal. Apr. 26, 2007); Mancha v. ICE, No. 06-cv-2650 (N.D. Ga. Nov. 1, 2006). 182. Members of Congress have also directly questioned DHS about the raids practice. In a letter dated June 11, 2007, three members of Congress raised direct concerns about ICE home raids undertaken in New Haven, Connecticut on June 6, 2007, in which ICE agents “pushed their way into homes” without search warrants, and “treated both adults and children inappropriately.” The letter asked why, despite stated DHS
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policy, only four of the 31 individuals arrested were actually “fugitives” with outstanding deportation orders.
183. The raids practice has also been criticized by the United Nations Special Rapporteur on the Human Rights of Migrants in his most recent report on the United States. See Report of Special Rapporteur Jorge Bustamante A/HRC/7/12/Add. 2 (Mar. 5, 2008) at 16-17 (noting ICE agents’ “frequent disregard of due process” and reporting victims’ stories that agents entered homes without warrants, denied occupants access to lawyers, and coerced them to sign voluntary departure agreements).
184. Reports of ICE raids – and their often concomitant abuses – have been particularly prevalent in the state of New Jersey. Since March 2006 ICE home raids have been reported across the state, including in Metuchen on May 24, 2006;6 Woodbridge on May 24, 2006;7 multiple towns between May 26 and June 14, 2006;8 Edison on May 24, 2006;9 Penns Grove on August 1, 2006; Clifton on November 13, 2006; Atlantic City on November 13-19, 2006;10 Bridgeton on January 29, 2007; Vineland on February 1, 2007;11 Bridgeton on February 1, 2007;12 Englewood on March 26, 2007;13 Paterson on

6

See id.

7

See id.

8

See Jennifer Lee and Julia Mead, 2,100 are Arrested on Immigration Violations,

N.Y. Times, June 15, 2006.

9

See ICE Press Release, ICE operation arrests 32 fugitives hiding in Edison, New

Jersey: Surveillance by ICE offices indicates some fugitives were working together to

defy the law, May 24, 2006, www.ice.gov/pi/news/newsreleases/articles

/060524edison.htm; John Dunphy, They can run, but they can't hide for long: Homeland

Security Division Cracks Down On Illegal Immigrants, The Sentinel, May 31, 2006;

Brian Donohue, Raids leave gaps in a thriving community: Immigration laws target

Indonesians, The Star-Ledger, July 9, 2006. 10 See Derek Harper, Immigration officials make 137 arrests around N.J., Atlantic

City Press, Nov. 21, 2006. 11 See Miles Jackson, Immigration Agents Spook City Residents, The Daily Journal

(Vineland, N.J.), Feb. 2, 2007.

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March 26 or 27, 2007; Cliffside Park in April 2007;14 Newark in April 2007;15 Morristown on June 6, 2007;16 Emerson on June 20, 2007;17 Hillsdale on June 20, 2007;18 Westwood on June 20, 2007;19 Penns Grove in August 2007; Union City in August 2007; Buena on August 29, 2007;20 Fair Lawn in September 2007; 21 Paterson on September 21, 2007; Newark on December 7, 2007; Princeton on December 7, 2007;22 North Bergen on January 29, 2008; and Passaic on February 19, 2008.23
Defendants’ Supervisory Responsibility Defendants Myers and Torres
185. Defendants Myers and Torres oversaw the implementation of a five-fold increase in the number of Fugitive Operations Teams in the two-year period between 2005 and 2007. They also approved a remarkable 800% increase in the arrest quotas of each team in the corresponding period of time without providing the necessary training to

12

See id.

13 See Lucas Sanchez, ICE Raid in Englewood, Blog at Blue Jersey.com, Mar. 26,

2007 (http://www.bluejersey.com/showDiary.do?diaryId=4373). 14 Elizabeth Llorente, Suits: Feds play dirty; Immigration officials say raids on

illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008.

15

Id.

16 Nancy Rosenstock, 'La Migra' Grabs 7 in New Jersey, The Militant, June 25,

2007; Daily Record Staff Report, Morris Gang, Immigration Raid Nets 7, The Daily

Record, June 7, 2007. 17 See Elizabeth Llorente, 18 Reputed Gang Members Arrested, The Record

(Hackensack, N.J.), June 22, 2007 (accessed on LexisNexis.com, Mar. 11, 2008).

18

See id.

19

See id.

20 See James Quaranta, Six Arrested in Immigration Raids, The Daily Journal

(Vineland, N.J.), August 31, 2007. 21 See Elizabeth Llorente, Suits: Feds play dirty; Immigration officials say raids on

illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008. 22 See Robert L. Ashbaugh, Princeton Borough, Editorial/Opinion, The Times of

Trenton, Jan. 7, 2008. 23 See Meredith Mandell, City Police, federal agents arrest 12 illegals; Critics:

Action violates ‘Save Haven’ measure, NJ Herald News, Feb. 20, 2008.

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prevent ICE agents – faced with these new pressures – from acting abusively and unlawfully. They facilitated the creation of a culture of lawlessness and lack of accountability within an agency they supervise.
186. In recent years, defendants Myers and Torres have been repeatedly placed on notice of the routine unconstitutional home-raid practices by ICE agents throughout the country. Specifically, defendants Myers and Torres have been sued numerous times for their roles in these practices. See e.g. Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sept. 20, 2007) (suing defendants Myers and Torres); Flores-Morales v. George, No. 07-cv0050 (M.D. Tenn. July 5, 2007) (suing defendant Myers); and Mancha v. ICE, No. 06cv-2650 (N.D. Ga. Nov. 1, 2006) (suing defendants Myers and Torres).
187. On June 11, 2007, the National Immigration Forum sent a letter to DHS Secretary, Michael Chertoff, questioning the conduct by ICE agents in New Haven home raids earlier that month. Defendant Myers responded to those allegations in a letter dated July 6, 2007, attached as Exhibit D. She acknowledged that only five of the 29 individuals arrested were fugitives. She similarly acknowledged that agents conducting residential searches and arrests routinely do not have judicially-issued warrants, and are therefore required to obtain knowing, voluntary consent before entering a home. However, according to defendant Myers, such consent was ensured simply by assigning a Spanish-speaking officer to each Fugitive Operations Team.
188. Defendant Torres had direct responsibility for the execution of fugitive operations within Operation Return to Sender. Like defendant Myers, he was made aware of unconstitutional home-raid practices by ICE agents through the media and lawsuits against him dating back to November 2006, and was specifically notified of
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unconstitutional home raid practices by officers under his supervision in New Haven, Connecticut. According to a memorandum obtained through the Freedom of Information Act, attached as Exhibit E, New Haven’s mayor called defendant Torres in June 2007 after home raids had been executed by ICE agents in New Haven. The mayor told defendant Torres about allegations that defendant Torres’s officers “barged into houses without warrants and verbally abused the people and children were manhandled.” The Mayor questioned whether defendant Torres’s office should continue to allow such home raids to be conducted with these allegations pending.
189. Despite being made aware of the of unconstitutional home-raid practices through lawsuits, congressional inquiries, repeated national media reports, and other sources, defendants Myers and Torres have not conducted any meaningful investigations into the practices, or provided any specific guidelines or training to fugitive operations agents to ensure that home entries and searches are conducted within constitutional limits. Nor have they, upon information and belief, meaningfully disciplined any officer responsible for such unconstitutional conduct. Moreover, defendants have contributed to such unlawful conduct by continuing to publicize, and laud as “successful,” their department’s dramatic increase in immigration arrests over the past two years, as reflected in boastful press releases touting ICE’s accomplishments. See e.g., ICE Press Releases, Newark, May 1, 2007; Apr. 2, 2007; Mar. 1, 2007; Nov. 20, 2006; Oct. 19, 2006. These press releases all indicate that the high number of arrests were made pursuant to the nationwide interior immigration enforcement strategy announced by defendant Myers and Secretary Chertoff.
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Defendants Rodriguez and Weber 190. As Directors of the Newark DRO field office, defendants Rodriguez and Weber were each directly responsible for overseeing fugitive operations and the execution of “Operation Return to Sender” in New Jersey. Each of them makes frequent reports and comments on the number of arrests made by ICE agents, and speaks publicly on behalf of ICE about the implementation of “Operation Return to Sender” in New Jersey. Comments to the media by each of them regarding allegations of inappropriate action by their fugitive operations personnel, including unconstitutional home raids, suggest that defendants Rodriguez and Weber at best acquiesced in, and at worst, encouraged such behavior. For example, when defendant Weber was presented with specific allegations regarding a pattern of home raids in New Jersey conducted without search warrants or consent, he responded: “I don’t see it as storming a home… . We see it as trying to locate someone.” Elizabeth Llorente, Immigration officials say raids on illegals are within the law, The Record (Hackensack, N.J.), Jan. 2, 2008. 191. Upon information and belief, defendants Rodriguez and Weber each knew that ICE agents were entering and searching homes in New Jersey without search warrants and without obtaining voluntary, informed consent. 192. Upon information and belief, defendants Rodriguez and Weber did not implement any guidelines, protocols, training, oversight, or record-keeping requirements that would ensure that officers under their supervision conducted home entries and searches within constitutional limits. 193. Upon information and belief, defendants Rodriguez and Weber have not conducted any substantial investigations into allegations of unconstitutional home raids
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of which they were made aware, or meaningfully disciplined any officer responsible for such unconstitutional conduct. Instead, they have simply continued to publicize ICE’s “successful” increase in New Jersey immigration arrests over the past two years, while allowing the unconstitutional means for many of the arrests to continue unchecked.
FIRST CLAIM: BIVENS CLAIM FOR UNREASONABLE HOME ENTRIES IN VIOLATION OF
THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of all plaintiffs against defendants Myers, Torres, Weber, Rodriguez, Agents
1-31, and John Soe ICE Supervisors 1-15) 194. Plaintiffs reallege paragraphs 1 through 193, as if fully set forth herein. 195. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes, curtilage and other constitutionally protected private property by government officers. 196. By entering the homes of plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusions reasonable, one or more of defendants Agents 1-31 violated plaintiffs’ Fourth Amendment rights. 197. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-15, supervisors of Agents 1-31, participated in violating plaintiffs’ rights, directed Agents 1-31 to violate those rights, or had knowledge of and acquiesced in the violations.
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198. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear training and under the pressure of sharply-increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
199. The actions of defendants Myers, Torres, Weber, Rodriguez, Agents 1-31, and John Soe ICE Supervisors 1-15 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiffs.
200. As a result of these intrusions into their homes, plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
201. The actions of defendants Myers, Torres, Weber, Rodriguez, Agents 1-31, and John Soe ICE Supervisors 1-15 give rise to a cause of action against them under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
SECOND CLAIM: BIVENS CLAIM FOR UNREASONABLE HOME SEARCHES IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of all plaintiffs against defendants Myers, Torres, Weber, Rodriguez, Agents
1-31, and John Soe ICE Supervisors 1-15) 202. Plaintiffs reallege paragraphs 1 through 201, as if fully set forth herein.
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203. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable searches of their homes by government officers.
204. By searching the homes of plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusions reasonable, one or more defendant Agents 1-31 violated plaintiffs’ Fourth Amendment rights.
205. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-15, supervisors of Agents 1-31, participated in violating plaintiffs’ rights, directed Agents 1-31 to violate those rights, or had knowledge of and acquiesced in the violations.
206. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the pressure of sharply increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
207. The actions of defendants Myers, Torres, Weber, Rodriguez, Agents 1-31, and John Soe ICE Supervisors 1-15 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
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208. As a result of these intrusions into their homes, plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
209. The actions of defendants Myers, Torres, Weber, Rodriguez, Agents 1-31, and John Soe ICE Supervisors 1-15 give rise to a cause of action against them under Bivens, supra.
THIRD CLAIM: BIVENS CLAIM FOR UNREASONABLE SEIZURES IN VIOLATION OF THE
FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of plaintiffs Argueta, Chavez, Galindo, W.C., Flores, Arias, Ontaneda, Covias, and Guzman, against defendants Myers, Torres, Weber, Rodriguez, Agents 1-31, and John
Soe ICE Supervisors 1-15) 210. Plaintiffs reallege paragraphs 1 through 209, as if fully set forth herein. 211. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable seizures. 212. By detaining plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such seizures reasonable, one or more of defendants Agents 1-31 violated the Fourth Amendment rights of these plaintiffs. 213. By taking plaintiff Maria Argueta into custody for almost 36 hours, in spite of her lawful status and without a valid arrest warrant or other circumstances that would render such an arrest reasonable, one or more of defendants Argueta Raid ICE Agents violated the Fourth Amendment rights of plaintiff Argueta.
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214. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-15 participated in violating plaintiffs’ rights, directed Agents 1-31 to violate those rights, or had knowledge of and acquiesced in the violations.
215. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the pressure of sharply increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
216. The actions of defendants Myers, Torres, Weber, Rodriguez, Agents 1-31, and John Soe ICE Supervisors 1-15 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
217. As a result of these detentions, plaintiffs Maria Argueta, Walter Chavez, Ana Galindo, W.C., Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
218. The actions of defendants Myers, Torres, Weber, Rodriguez, Agents 1-31, and John Soe ICE Supervisors 1-15 give rise to a cause of action against them under Bivens, supra.
FOURTH CLAIM: BIVENS CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION (On behalf of plaintiffs Chavez, Galindo, W.C., and Guzman against defendants Myers,
Torres, Weber, Rodriguez, Chavez Raid ICE Agents, Guzman Raid ICE Agents, and John Soe ICE Supervisors 1-15)
219. Plaintiffs reallege paragraphs 1 through 218, as if fully set forth herein.
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220. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from the use of unreasonable or excessive force.
221. By physically seizing plaintiff Walter Chavez and needlessly shoving him up to the door of his house and then into his house, even though he had offered no resistance to the agents, and by pointing a gun directly at Ana Galindo and nine-year old W.C., one or more of defendants Chavez Raid ICE Agents used excessive force against plaintiffs Chavez, Galindo, and W.C., and in doing so, violated their Fourth Amendment rights.
222. By pushing through the front door of plaintiff Yesica Guzman’s home with weapons drawn, shoving her aside upon entry, and repeatedly screaming at her, and pointing a gun at her, one or more of defendants Guzman Raid ICE Agents used excessive force against her, and in doing so, violated the Fourth Amendment rights of plaintiff Guzman.
223. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-15, supervisors of Chavez Raid ICE Agents and Guzman Raid ICE Agents, participated in violating the plaintiffs’ rights, directed Chavez Raid ICE Agents and Guzman Raid ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
224. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs’ rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear civil rights training and under the
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pressure of sharply increasing quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States.
225. The actions of defendants Myers, Torres, Weber, Rodriguez, Chavez Raid ICE Agents, Guzman Raid ICE Agents, and John Soe ICE Supervisors 1-15 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, plaintiffs’ civil rights.
226. As a result of the use of excessive force, plaintiffs Chavez, Galindo, W.C., and Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
227. The actions of defendants Myers, Torres, Weber, Rodriguez, Chavez Raid ICE Agents, Guzman Raid ICE Agents, and John Soe ICE Supervisors 1-15 give rise to a cause of action against them under Bivens, supra.
FIFTH CLAIM: BIVENS CLAIM FOR VIOLATIONS OF SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION (On behalf of plaintiffs Chavez, Galindo, W.C., and Guzman against defendants Myers,
Torres, Weber, Rodriguez, Chavez Raid ICE Agents, Guzman Raid ICE Agents, and John Soe ICE Supervisors 1-15)
228. Plaintiffs reallege paragraphs 1 through 227, as if fully set forth herein. 229. Plaintiffs have a constitutionally protected right under the Fifth Amendment to the United States Constitution to be free from abusive government conduct that shocks the conscience. 230. By unnecessarily placing their hands on their guns in a threatening manner and then unnecessarily pointing a gun at nine-year-old plaintiff W.C. and plaintiff Galindo, screaming at plaintiff Galindo in front of her son plaintiff W.C., and in front of
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plaintiff W.C. threatening to take him away from his parents plaintiffs Chavez and Galindo, one or more of defendants Chavez Raid ICE Agents violated the Fifth Amendment substantive due process rights of plaintiffs Chavez, Galindo, and W.C., to be free from governmental conduct that shocks the conscience.
231. By drawing their guns during the raid on the home of plaintiff Yesica Guzman, pointing their guns at her, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of defendants Guzman Raid ICE Agents violated Ms. Guzman’s Fifth Amendment substantive due process right to be free from governmental conduct that shocks the conscience.
232. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-15 participated in violating the rights of plaintiffs Walter Chavez, Ana Galindo, W.C., and Yesica Guzman, directed Chavez Raid ICE Agents, and Guzman Raid ICE Agents to violate them, or had knowledge of and acquiesced in the violations.
233. Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of the rights of plaintiffs Walter Chavez, Ana Galindo, W.C., and Yesica Guzman; tolerated past or ongoing misbehavior of this kind; or, by fostering disrespect for the rights and dignity of individuals suspected of being undocumented immigrants to the United States, were deliberately indifferent to the risk that ICE officers would engage in the conscienceshocking practices that occurred in this case.
234. The actions of defendants Myers, Torres, Weber, Rodriguez, Chavez Raid ICE Agents, Guzman Raid ICE Agents, and John Soe ICE Supervisors 1-15 were
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intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiffs.
235. As a result of defendants’ conscience-shocking behavior, plaintiffs Walter Chavez, Ana Galindo, W.C., and Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
236. The actions of defendants Myers, Torres, Weber, Rodriguez, Chavez Raid ICE Agents, Guzman Raid ICE Agents, and John Soe ICE Supervisors 1-15 give rise to a cause of action against them under Bivens, supra.
SIXTH CLAIM: BIVENS CLAIM FOR VIOLATION OF EQUAL PROTECTION OF THE LAWS
UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Ontaneda against defendants Ontaneda Raid ICE Agents and John Soe ICE Supervisors 1-15)
237. Plaintiffs reallege paragraphs 1 through 236, as if fully set forth herein. 238. Plaintiffs have a constitutionally protected right under the Fifth Amendment to the United States Constitution to due process of law, which includes equal protection of the laws. 239. Upon request, plaintiff Juan Ontaneda provided to one or more of the Ontaneda Raid ICE Agents a valid driver’s license, and defendants had no reason to suspect that Mr. Ontaneda had committed any crime or was not a United States citizen. In spite of this utter lack of individualized suspicion, one or more of Ontaneda Raid ICE Agents arrested Mr. Ontaneda, apparently for no other reason than his race or ethnicity, in violation of Mr. Ontaneda’s Fifth Amendment right to equal protection of the laws. 240. Upon information and belief, one or more of defendants John Soe ICE Supervisors 1-15 participated in violating the rights of plaintiff Ontaneda, directed
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Ontaneda Raid ICE Agents to violate those rights, or had knowledge of and acquiesced in the violations.
241. The actions of the Ontaneda Raid ICE Agents and John Soe ICE Supervisors 1-15 were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Ontaneda.
242. As a result of his arrest on the basis of his race or ethnicity alone, plaintiff Juan Ontaneda suffered harms, including but not limited to loss of liberty, humiliation and emotional distress.
243. The actions of defendants Ontaneda Raid ICE Agents, and John Soe ICE Supervisors 1-15 give rise to a cause of action against them under Bivens, supra.
SEVENTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE HOME ENTRY IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION (On behalf of plaintiff Guzman against defendants Penns Grove Officers) 244. Plaintiffs reallege paragraphs 1 through 243, as if fully set forth herein. 245. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 246. By entering the home of plaintiff Yesica Guzman without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such intrusion reasonable, one or more of defendant Penns Grove Officers violated the Fourth Amendment rights of plaintiff Yesica Guzman.
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247. As a result of this intrusion into her home, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
248. The actions of defendants Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Yesica Guzman.
EIGHTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE HOME SEARCH IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION (On behalf of plaintiff Guzman against defendants Penns Grove Officers) 249. Plaintiffs reallege paragraphs 1 through 248, as if fully set forth herein. 250. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 251. By searching the home of plaintiff Yesica Guzman without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendant Penns Grove Officers violated the Fourth Amendment rights of plaintiff Yesica Guzman. 252. As a result of this search of her home, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress. 253. The actions of defendants Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Yesica Guzman.
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NINTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR UNREASONABLE SEIZURE IN VIOLATION OF
THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Guzman against defendants Penns Grove Officers) 254. Plaintiffs reallege paragraphs 1 through 253, as if fully set forth herein. 255. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable seizures. 256. By detaining plaintiff Yesica Guzman without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such seizure reasonable, one or more of defendant Penns Grove Officers violated the Fourth Amendment rights of plaintiff Yesica Guzman. 257. As a result of her detention, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress. 258. The actions of defendants Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Yesica Guzman.
TENTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION (On behalf of plaintiff Guzman against defendants Penns Grove Officers) 259. Plaintiffs reallege paragraphs 1 through 258, as if fully set forth herein. 260. Plaintiffs have a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from the use of unreasonable or excessive force.
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261. By pushing through the front door of plaintiff Yesica Guzman’s residence with their weapons drawn, shoving her aside upon entry, pointing a gun at her, and repeatedly screaming at her, one or more of defendants Penns Grove Officers used excessive force against her, and in doing so, violated her Fourth Amendment rights.
262. The actions of defendants Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Yesica Guzman.
263. As a result of this excessive force, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
ELEVENTH CLAIM: 42 U.S.C. § 1983 CLAIM FOR VIOLATION OF SUBSTANTIVE DUE PROCESS
RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(On behalf of plaintiff Guzman against defendants Penns Grove Officers) 264. Plaintiffs reallege paragraphs 1 through 263, as if fully set forth herein. 265. Plaintiffs have a constitutionally protected right under the Fourteenth Amendment to the United States Constitution to be free from abusive state government conduct that shocks the conscience. 266. By drawing their guns on plaintiff Yesica Guzman, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of defendant Penns Grove Officers violated plaintiff Yesica Guzman’s Fourteenth Amendment substantive due process right to be free from state government abuse that shocks the conscience.
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267. As a result of defendants’ conscience-shocking behavior, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
268. The actions of defendant Penns Grove Officers were intentional, malicious, reckless, and reflect a callous disregard for, or indifference to, the civil rights of plaintiff Yesica Guzman.
TWELTH CLAIM: CLAIM FOR UNREASONABLE HOME ENTRY IN VIOLATION OF ARTICLE
I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Guzman against defendants Penns Grove Officers) 269. Plaintiffs reallege paragraphs 1 through 268, as if fully set forth herein. 270. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable searches and seizures, including unreasonable intrusions into their homes by government officers. 271. By entering the home of plaintiff Yesica Guzman without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendants Penns Grove Officers violated the rights of plaintiff Yesica Guzman under New Jersey Const., Art. I, ¶ 7. 272. As a result of this intrusion into her home, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
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THIRTEENTH CLAIM: CLAIM FOR UNREASONABLE HOME SEARCH IN VIOLATION OF ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION
(On behalf of plaintiff Guzman against defendants Penns Grove Officers) 273. Plaintiffs reallege paragraphs 1 through 272, as if fully set forth herein. 274. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable searches, including unreasonable searches of their homes by government officers. 275. By searching the home of plaintiff Yesica Guzman without a valid search warrant, without consent, and without other circumstances (such as probable cause and exigency) that would render such an intrusion reasonable, one or more of defendants Penns Grove Officers violated the rights of plaintiff Yesica Guzman under New Jersey Const., Art. I, ¶ 7. 276. As a result of this search of her home, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
FOURTEENTH CLAIM: CLAIM FOR UNREASONABLE SEIZURES IN VIOLATION OF ARTICLE I,
PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Guzman against defendants Penns Grove Officers) 277. Plaintiffs reallege paragraphs 1 through 276, as if fully set forth herein. 278. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from unreasonable seizures. 279. By detaining plaintiff Yesica Guzman without a valid arrest warrant or other circumstances (such as probable cause and exigency) that would render such a
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seizure reasonable, one or more of the Penns Grove Officers violated rights of plaintiff Yesica Guzman under New Jersey Const., Art. I, ¶ 7.
280. As a result of this detention, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
FIFTEENTH CLAIM: CLAIM FOR USE OF EXCESSIVE FORCE IN VIOLATION OF ARTICLE I,
PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (On behalf of plaintiff Guzman against defendants Penns Grove Officers) 281. Plaintiffs reallege paragraphs 1 through 280, as if fully set forth herein. 282. Plaintiffs have a constitutionally protected right under Article I, paragraph 7 of the New Jersey Constitution to be free from the use of excessive force by government officers. 283. By pushing through the front door of plaintiff Yesica Guzman’s residence with their weapons drawn, shoving her aside upon entry, pointing a gun at her, and repeatedly screaming at her, one or more of defendants Penns Grove Officers used excessive force against her, and in doing so, violated the rights of plaintiff Yesica Guzman under New Jersey Const., Art. I, ¶ 7. 284. As a result of the use of excessive force, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation and emotional distress.
SIXTEENTH CLAIM: CLAIM FOR VIOLATION OF FUNDAMENTAL FAIRNESS AND DUE PROCESS OF LAW PROVIDED BY ARTICLE I, PARAGRAPH 1 OF THE NEW
JERSEY CONSTITUTION (On behalf of plaintiff Guzman against defendants Penns Grove Officers) 285. Plaintiffs reallege paragraphs 1 through 284, as if fully set forth herein. 286. Article I, Paragraph 1 of the New Jersey Constitution provides that “[a]ll persons are by nature free and independent, and have certain natural and unalienable
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rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”
287. The actions of one or more of the Penns Grove Officers in unlawfully entering and searching plaintiff Yesica Guzman’s home, and seizing her, violated her right to be free from unjust, fundamentally unfair, and arbitrary government action.
288. By drawing their guns during the raid of plaintiff Yesica Guzman’s home, pointing a gun at her, threatening to have her children taken away from her, and telling her that her husband would spend more than 20 years in prison, one or more of the Penns Grove Officers further violated plaintiff Yesica Guzman’s N.J. Const., Art. I, ¶ 1 substantive due process right to be free from government abuse.
289. As a result of the conduct of the Penns Grove Officers, plaintiff Yesica Guzman suffered harms, including but not limited to loss of liberty, humiliation, and emotional distress.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request judgment against defendants as follows: (a) Compensatory and consequential damages in an amount to be determined
at trial; (b) Punitive damages on all claims allowed by law, in an amount to be
determined at trial; (c) Permanent injunctive relief barring all further intimidation of plaintiffs
Walter Chavez, Ana Galindo, and W.C., and any and all entry into the home of plaintiffs Walter Chavez, Ana Galindo, and W.C., absent a warrant issued by a judicial officer or voluntary consent by plaintiff Chavez or plaintiff Galindo; (d) Attorney’s fees and costs associated with this action;
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(e) Any further relief as this Court deems just and proper and any other relief as allowed by law.
Plaintiffs demand a trial by jury. Dated: April 16, 2010

Respectfully submitted,
By: __/s/ Baher Azmy________________ Baher Azmy, Esq Mark Noferi, Esq. L. Danielle Tully, Esq. SETON HALL SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, New Jersey 07102-5210 (973) 642-8709 Attorneys for Plaintiff

___/s/ Scott L. Walker________ R. Scott Thompson, Esq. Scott L. Walker, Esq. Natalie J. Kraner, Esq. Heather C. Bishop, Esq. LOWENSTEIN SANDLER PC Attorneys At Law 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500 Attorneys for Plaintiffs

62

 
 U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:08-cv-01652-PGS-DEA

ARGUETA et al v. MYERS et al Assigned to: Judge Peter G. Sheridan Referred to: Magistrate Judge Douglas E. Arpert Case in other court: Third Circuit Court of Appeals,
10-01479 Cause: 42:1983 Civil Rights Act

Date Filed: 04/03/2008 Date Terminated: 09/21/2012 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff MARIA ARGUETA

represented by BAHER AZMY CENTER FOR CONSTITUTIONAL RIGHTS 666 BROADWAY 7TH FLOOR NEW YORK, NY 10012 212-614-6464 Email: bazmy@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

MEGAN E. HIORTH LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973-597-2500 LEAD ATTORNEY ATTORNEY TO BE NOTICED

REYNOLD LAMBERT LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973-597-6340 Email: rlambert@lowenstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

AURORA FRANCESCA PARRILLA Sedgwick LLP One Newark Center

1085 Raymond Boulevard 16th Floor Newark, NJ 07102 973-242-0002 Fax: 973-242-8099 Email: Aurora.parrilla@sedgwicklaw.com ATTORNEY TO BE NOTICED
CATHERINE WEISS LOWENSTEIN SANDLER 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973-597-2500 Email: cweiss@lowenstein.com ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER 101 South Broad Street Trenton, NJ 08608 2016023993 TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
FRANK THOMAS MORE CATALINA LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973-597-2338 Email: fcatalina@lowenstein.com ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973-597-2500 Email: hbishop@lowenstein.com ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN LOWENSTEIN SANDLER PC 65 LIVINGSWTON AVENUE ROSELAND, NJ 07068 973-597-2500

Plaintiff ARTURO FLORES

Email: kzimmerman@lowenstein.com ATTORNEY TO BE NOTICED
NATALIE JANET KRANER LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973-422-6722 Email: nkraner@lowenstein.com ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068-1791 (973) 597-2500 Email: sthompson@lowenstein.com ATTORNEY TO BE NOTICED
SCOTT LEE WALKER LOWENSTEIN SANDLER, LLP 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 (973) 597-2368 ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address)

Plaintiff BYBYANA ARIAS

ATTORNEY TO BE NOTICED
CATHERINE WEISS (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
FRANK THOMAS MORE CATALINA (See above for address) ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address) ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
CATHERINE WEISS (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
FRANK THOMAS MORE CATALINA (See above for address) ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address) ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED

JUAN ONTANEDA

represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
CATHERINE WEISS (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
FRANK THOMAS MORE CATALINA (See above for address) ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address) ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
VERONICA COVIAS TERMINATED: 09/07/2011

R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CATHERINE WEISS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
FRANK THOMAS MORE CATALINA (See above for address) ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address)

Plaintiff CARLA ROE 1

ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address)

Plaintiff CARLA ROE 2

ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address)

Plaintiff CARLOS ROE 2

ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address)

Plaintiff CARLA ROE 3

ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address)

Plaintiff CARLOS ROE 4

ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address)

Plaintiff Walter Chavez

ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
BAHER AZMY (See above for address) ATTORNEY TO BE NOTICED
CATHERINE WEISS (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED

Plaintiff Ana Galindo

FRANK THOMAS MORE CATALINA (See above for address) ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address) ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA PARRILLA (See above for address) ATTORNEY TO BE NOTICED
BAHER AZMY (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
W.C., by and through his parents Walter Chavez and Ana Galindo

CATHERINE WEISS (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
FRANK THOMAS MORE CATALINA (See above for address) ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address) ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED
represented by MEGAN E. HIORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REYNOLD LAMBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AURORA FRANCESCA

V. Defendant

PARRILLA (See above for address) ATTORNEY TO BE NOTICED
BAHER AZMY (See above for address) ATTORNEY TO BE NOTICED
CATHERINE WEISS (See above for address) ATTORNEY TO BE NOTICED
DAVID MARSHALL REINER (See above for address) TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
FRANK THOMAS MORE CATALINA (See above for address) ATTORNEY TO BE NOTICED
HEATHER COLLEEN BISHOP (See above for address) ATTORNEY TO BE NOTICED
KENNETH H. ZIMMERMAN (See above for address) ATTORNEY TO BE NOTICED
NATALIE JANET KRANER (See above for address) ATTORNEY TO BE NOTICED
R. SCOTT THOMPSON (See above for address) ATTORNEY TO BE NOTICED
SCOTT LEE WALKER (See above for address) ATTORNEY TO BE NOTICED

JULIE L. MYERS Assistant Secretary for Immigration and Customs Enforcement TERMINATED: 08/01/2012

represented by EDWARD JOHN MARTIN US DEPARTMENT OF JUSTICE TORTS BRANCH, CIVIL DIVISION PO BOX 7146 WASHINGTON, DC 20044 202-616-1024 Email: edward.martin2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
GJON JUNCAJ US DEPARTMENT OF JUSTICE, CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION 450 5TH STREET NW, LSB#6034 WASHINGTON, DC 20530 202-307-8514 Email: gjon.juncaj@usdoj.gov TERMINATED: 08/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER DEPARTMENT OF JUSTICE BEN FRANKLIN STATION P.O. BOX 868 WASHINGTON, DC 20044 202-532-4112 Email: melanie.keiper@usdoj.gov TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
NICOLE ROGERS PRAIRIE U.S. DEPARTMENT OF JUSTICE P.O. 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4074 Email: nicole.prairie@usdoj.gov TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN

Defendant JOHN P. TORRES Deputy Assistant Director for Operations, Immigration and Customs Enforcement TERMINATED: 08/01/2012
Defendant SCOTT WEBER Director, Office of Detention anf Removal Operations,Newark Field Office TERMINATED: 08/01/2012

UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION P.O. BOX 7146 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-0089 Email: sarah.whitman@usdoj.gov ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GJON JUNCAJ (See above for address) TERMINATED: 08/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
NICOLE ROGERS PRAIRIE (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GJON JUNCAJ (See above for address) TERMINATED: 08/11/2011

Defendant BARTOLOME RODRIGUEZ Former Director, Office of Detention and Removal Operations, Newark Field Office TERMINATED: 08/01/2012
Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
NICOLE ROGERS PRAIRIE (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GJON JUNCAJ (See above for address) TERMINATED: 08/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
NICOLE ROGERS PRAIRIE (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) ATTORNEY TO BE NOTICED

JOHN SOE ICE SUPERVISORS 1-25
Defendant JOHN LOE PENNS GROVE OFFICERS 1-10 Defendant JOHN DOE ICE AGENTS 1-50
Defendant UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE")

represented by GJON JUNCAJ (See above for address) TERMINATED: 08/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
NICOLE ROGERS PRAIRIE (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
represented by GJON JUNCAJ (See above for address) TERMINATED: 08/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
NICOLE ROGERS PRAIRIE (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
represented by CHRISTOPHER WAYNE HOLLIS U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION P.O. BOX 868

Defendant John Morton
Defendant Alonzo R. Penna

BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-0899 Email: christopher.hollis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
GJON JUNCAJ (See above for address) TERMINATED: 08/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
NICOLE ROGERS PRAIRIE (See above for address) TERMINATED: 06/12/2012 ATTORNEY TO BE NOTICED
represented by MELANIE SUZANNE KEIPER DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION BEN FRANKLIN STATION P.O. BOX 868 WASHINGTON, DC 20044 202-532-4112 Email: melanie.keiper@usdoj.gov TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 1
Defendant Agent 2

represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON U.S. DEPARTMENT OF JUSTICE P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7037 Email: jesi.j.carlson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. BOX 7146 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-4199 Email: zachary.richter@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 3

JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER

Defendant Agent 4
Defendant Agent 5

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH

Defendant Agent 6
Defendant Agent 7

WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 8
Defendant Agent 9 TERMINATED: 07/25/2011 Defendant Agent 10 TERMINATED: 09/07/2011

ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY

Defendant Agent 11

ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 12
Defendant Agent 13

ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY

Defendant Agent 14
Defendant Agent 15

ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 16

MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 17
Defendant Agent 18

represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 19
Defendant Agent 20

represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 21
Defendant Agent 22

represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 23
Defendant Agent 24 TERMINATED: 09/07/2011

represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 25
Defendant Agent 26

SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Agent 27

JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER

Defendant Agent 28
Defendant Agent 29

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH

Defendant Agent 30
Defendant Agent 31 TERMINATED: 09/07/2011

WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWARD JOHN MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JESI J. CARLSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH ELISABETH WHITMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John Doe ICE Agents 1- 18 Defendant John Soe ICE Supervisors 1-15
Defendant Carmen Hernandez
Defendant Jason Spera
Defendant Joseph DiCarolis

ZACHARY CARL RICHTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MELANIE SUZANNE KEIPER (See above for address) TERMINATED: 06/12/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by TODD J. GELFAND BARKER, GELFAND & JAMES LINWOOD GREENE SUITE 12 210 NEW ROAD LINWOOD, NJ 08221 609-601-8677 Fax: 609-601-8577 Email: tgelfand@barkerlawfirm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by TODD J. GELFAND (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ALLAN E. RICHARDSON RICHARDSON EMPLOYMENT AND CIVIL RIGHTS LAW 125 Harvard Ave. Collingswood, NJ 08108 856-579-7045 Fax: 856-579-7051 Email:

Date Filed 04/03/2008
04/07/2008 04/07/2008 04/07/2008 04/07/2008

arichardson@employmentlawnj.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
# Docket Text
1 COMPLAINT against JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN LOE PENNS GROVE OFFICERS 1-10 ( Filing fee $ 350 receipt number 1936659.) JURY DEMAND, filed by CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (Attachments: # 1 EXH A, # 2 EXH B, # 3 EXH C PT 1, # 4EXH C PT 2, # 5 EXH D, # 6 EXH E, # 7 SMS-1, # 8 SMS-2, # 9 SMS-3, # 10SMS-4)(dr, ) (Entered: 04/07/2008)
2 Summons Issued as to JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ. Days Due - 60. MLD TO COUNSEL BAHER AZMY, SETON HALL LAW UNIVERSITY SCH OF LAW, NEWARK,NJ(dr, ) (dr, ). Modified on 4/8/2008 (dr, ). (Entered: 04/07/2008)
3 NOTICE of Appearance by HEATHER COLLEEN BISHOP on behalf of CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 (BISHOP, HEATHER) (Entered: 04/07/2008)
4 NOTICE of Appearance by SCOTT LEE WALKER on behalf of CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 (WALKER, SCOTT) (Entered: 04/07/2008)
5 NOTICE of Appearance by R. SCOTT THOMPSON on behalf of CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 (THOMPSON, R.) (Entered: 04/07/2008)

04/07/2008 04/07/2008 04/07/2008 04/14/2008 04/30/2008 04/30/2008 04/30/2008

6 NOTICE of Appearance by NATALIE JANET KRANER on behalf of CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 (KRANER, NATALIE) (Entered: 04/07/2008)
7 NOTICE of Appearance by AURORA FRANCESCA PARRILLA on behalf of CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 (PARRILLA, AURORA) (Entered: 04/07/2008)
8 NOTICE of Appearance by DAVID MARSHALL REINER on behalf of CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 (REINER, DAVID) (Entered: 04/07/2008)
9 Letter from R. Scott Thompson. (THOMPSON, R.) (Entered: 04/14/2008)
10 AFFIDAVIT of Service for Summons, Complaint, Exhibits served on Bartolome Rodriguez on 04/17/2008, filed by CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (BISHOP, HEATHER) (Entered: 04/30/2008)
11 AFFIDAVIT of Service for Summons, Complaint, Exhibits served on Scott Weber on 04/17/2008, filed by CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (BISHOP, HEATHER) (Entered: 04/30/2008)
12 AFFIDAVIT of Service for Summons, Complaint, Exhibits served on United States Attorney for District of New Jersey Christopher J. Christie on 04/17/2008, filed by CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (BISHOP, HEATHER) (Entered: 04/30/2008)

04/30/2008 05/08/2008 05/09/2008 05/09/2008 05/22/2008
05/22/2008 05/22/2008

CLERK'S QUALITY CONTROL MESSAGE: The 10 , 11 , 12 AFFIDAVIT OF SERVICE filed by H. BISHOP on 4/30/08 was submitted incorrectly as aN AFFIDAVIT OF SERVICE. PLEASE RESUBMIT THE DOCUMENT(S) *SUMMONS RETURNED EXECUTED. This submission will remain on the docket unless otherwise ordered by the court. (dc, ) (Entered: 05/05/2008)
Update Answer Due Deadline as to defts Weber & Rodriguez until 6/16/08 (sr, ) (Entered: 05/08/2008)
13 SUMMONS Returned Executed by CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. JULIE L. MYERS served on 4/22/2008, answer due 6/23/2008. (BISHOP, HEATHER) (Entered: 05/09/2008)
14 SUMMONS Returned Executed by CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. JOHN P. TORRES served on 4/22/2008, answer due 6/23/2008. (BISHOP, HEATHER) (Entered: 05/09/2008)
15 AMENDED COMPLAINT against all defendants all defendants., filed by Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, CARLOS ROE 4, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C--part 1, # 4 Exhibit C-part 2, # 5Exhibit D, # 6 Exhibit E, # 7 Summons Rodriguez, # 8 Summons United States Immigration and Customs Enforcement ("ICE"), # 9 Summons Torres, # 10Summons Myers, # 11 Summons Weber)(THOMPSON, R.) (Entered: 05/22/2008)
16 MOTION for Order to Show Cause by Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo. (Attachments: # 1Declaration Declaration of Walter Chavez, # 2 Declaration Declaration of Ana Galindo, # 3 Brief Memorandum in Support of Order to Show Cause, # 4Certificate of Service)(THOMPSON, R.) (Entered: 05/22/2008)
Set/Reset Hearings: Show Cause Hearing set for 5/27/2008 at 11:00 AM in Newark - Courtroom 4A before Judge Peter G. Sheridan. (dh, ) (Entered: 05/22/2008)

05/27/2008 05/28/2008 05/28/2008
05/28/2008 05/29/2008 05/29/2008 05/29/2008 05/29/2008 05/29/2008

27 Minute Entry for proceedings held before Judge Peter G. Sheridan: Show Cause Hearing held on 5/27/2008, Telephone Conference held on 5/27/2008. (Court Reporter Ira Rubenstein.) (dh, ) (Entered: 06/03/2008)
17 Summons Issued as to UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), U.S. Attorney (Due - 60 days), re 15 Amended Complaint (Mailed to R. Scott Thompson, Esq.) (dc, ) (dc, ). (Entered: 05/28/2008)
18 Summons Issued as to JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, U.S. Attorney (Due - 10 days), re 15Amended Complaint (Mailed to R. Scott Thompson, Esq.) (Additional attachment(s) added on 5/29/2008: # 1 Summons as to Bartolome Rodriguez, # 2 Summons as to John P. Torres, # 3 Summons as to Julie L. Myers) (dc, ). (Entered: 05/28/2008)
19 Letter from Counsel for Defendant to Hon. Peter G. Sheridan Transmitting ICE Letter to Plaintiffs' Counsel (As Agreed on the Record on 5/27/08). (Attachments: # 1 ICE Letter to Plaintiffs' Counsel)(CLARK, JAMES) (Entered: 05/28/2008)
20 NOTICE of Appearance by SCOTT LEE WALKER on behalf of Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo (WALKER, SCOTT) (Entered: 05/29/2008)
21 NOTICE of Appearance by HEATHER COLLEEN BISHOP on behalf of Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo (BISHOP, HEATHER) (Entered: 05/29/2008)
22 Letter from Scott L. Walker, Counsel to Plaintiffs Walter Chavez, Ana Galindo, and W.C. (by and through his parents Walter Chavez and Ana Galindo). (Attachments: # 1 Text of Proposed Order Regarding Preliminary Injunction Schedule)(WALKER, SCOTT) (Entered: 05/29/2008)
23 NOTICE of Appearance by DAVID MARSHALL REINER on behalf of Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo (REINER, DAVID) (Entered: 05/29/2008)
24 NOTICE of Appearance by AURORA FRANCESCA PARRILLA on behalf of Walter Chavez, Ana Galindo, W.C., by and through

05/30/2008 06/02/2008 06/05/2008
06/10/2008 06/10/2008 06/10/2008 06/25/2008
06/25/2008

his parents Walter Chavez and Ana Galindo (PARRILLA, AURORA) (Entered: 05/29/2008)
25 NOTICE of Appearance by BAHER AZMY on behalf of Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo (AZMY, BAHER) (Entered: 05/30/2008)
26 NOTICE of Appearance by NATALIE JANET KRANER on behalf of Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo (KRANER, NATALIE) (Entered: 06/02/2008)
28 NOTICE of Appearance by GJON JUNCAJ on behalf of JULIE L. MYERS, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN DOE ICE AGENTS 1-50 (JUNCAJ, GJON) (Entered: 06/05/2008)
29 NOTICE of Appearance by EDWARD JOHN MARTIN on behalf of JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ (MARTIN, EDWARD) (Entered: 06/10/2008)
30 Application and Proposed Order for Clerk's Order to extend time to answer as to Individual Federal Defendants Myers, Torres, Weber and Rodriguez.. (MARTIN, EDWARD) (Entered: 06/10/2008)
CLERKS TEXT ORDER - The Application for a Clerks Order Extending Time to Answer - Document # 30 submitted by E. MARTIN on 6/10/08 has been GRANTED. The answer due date has been set for 7/8/08. (dc, ) (Entered: 06/12/2008)
31 Letter from Heather C. Bishop re: Application for the Pro Hac Vice Admission of Bassina Farbenblum. (Attachments: # 1 Affidavit of Bassina Farbenblum, Esq., # 2 Certification of Scott L. Walker, Esq. in Support of the Application for the Pro Hac Vice Admission of Bassina Farbenblum, # 3 Text of Proposed Order)(BISHOP, HEATHER) (Entered: 06/25/2008)
32 Certification of Scott L. Walker in Support of the Application for the Pro Hac Vice Admission of Bassina Farbenblum (Corrected) on behalf of Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS,

06/26/2008 06/26/2008
06/26/2008 07/08/2008 07/08/2008 07/15/2008

JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 Re 31 Letter,. (BISHOP, HEATHER) (Entered: 06/25/2008)
33 APPLICATION FOR EXTENSION OF TIME TO ANSWER OR OTHERWISE PLEAD AND ORDER. Signed by Judge Peter G. Sheridan on 6/25/08. (dc, ) (Entered: 06/26/2008)
34 MOTION to Dismiss Plaintiffs' Request for Equitable Relief by JULIE L. MYERS, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN DOE ICE AGENTS 1-50. Responses due by 7/18/2008 (Attachments: # 1 Brief Memorandum in Support of US Defendants' Motion to Dismiss Plaintiffs' Request For Equitable Relief, # 2 Exhibit Ex. 1 of Memorandum in Support of US Defendants' Motion to Dismiss, # 3 Exhibit Ex. 2 of Memorandum in Support of US Defendants' Motion to Dismiss, # 4 Certificate of Service)(JUNCAJ, GJON) (Entered: 06/26/2008)
Set/Reset Deadlines as to 34 MOTION to Dismiss Plaintiffs' Request for Equitable Relief. Motion Hearing set for 9/15/2008 before Judge Peter G. Sheridan. Please be advised that this motion will be decided on the papers unless otherwise notified by the court. (dc, ) (Entered: 07/16/2008)
35 MOTION to Dismiss by JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ. Responses due by 7/28/2008 (Attachments: # 1 Memorandum in Support of Motion, # 2 Exhibit 1, # 3Exhibit 2, # 4 Proposed Order)(MARTIN, EDWARD) (Entered: 07/08/2008)
Set Deadline as to 35 MOTION to Dismiss. Motion Hearing set for 8/18/2008 before Judge Peter G. Sheridan. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 07/08/2008)
36 NOTICE of Appearance by KENNETH H. ZIMMERMAN on behalf of Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3 (ZIMMERMAN, KENNETH) (Entered: 07/15/2008)

07/18/2008 07/18/2008
07/22/2008 07/24/2008 07/28/2008 07/29/2008 07/31/2008
07/31/2008

37 BRIEF in Opposition re 34 MOTION to Dismiss Plaintiffs' Request for Equitable Relief filed by Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo. (Attachments: # 1 Certificate of Service)(WALKER, SCOTT) (Entered: 07/18/2008)
CLERKS QUALITY CONTROL MESSAGE - The Certificate of Service attached to the 37 Brief in Opposition to Motion submitted by S. Walker on 7/18/08 did not contain a proper electronic signature (s/). Please resubmit the Certificate of Service only using *Certificate of Service with the proper electronic signature (s/ Attorneys Name.) This submission will remain on the docket unless otherwise ordered by the court. (dc, ) (Entered: 07/22/2008)
38 CERTIFICATE OF SERVICE by Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo re 37 Brief in Opposition to Motion, (WALKER, SCOTT) (Entered: 07/22/2008)
39 NOTICE of Appearance by SARAH ELISABETH WHITMAN on behalf of JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ (WHITMAN, SARAH) (Entered: 07/24/2008)
40 Letter re 35 MOTION to Dismiss. (Attachments: # 1 Text of Proposed Order)(WALKER, SCOTT) (Entered: 07/28/2008)
41 ORDER re preliminary injunction schedule, re 16 Order to Show Cause. Signed by Judge Peter G. Sheridan on 7/28/08. (dc, ) (Entered: 07/29/2008)
42 SUMMONS Returned Executed by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE") served on 6/4/2008, answer due 8/4/2008. (Attachments: # 1 Certificate of Service for U.S. Immigration and Customs Enforcement, # 2 Certificate of Service for United States Attorney General)(BISHOP, HEATHER) (Entered: 07/31/2008)
43 SUMMONS Returned Executed by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA,

07/31/2008 07/31/2008 07/31/2008 08/01/2008

VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. JULIE L. MYERS served on 6/6/2008, answer due 8/5/2008. (Attachments: # 1 Certificate of Service for U.S. Attorney General, # 2 Certificate of Service for U.S. Immigration and Customs Enforcement, # 3 Summons Returned Executed for U.S. Attorney)(BISHOP, HEATHER) (Entered: 07/31/2008)
44 SUMMONS Returned Executed by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. JOHN P. TORRES served on 6/6/2008, answer due 8/5/2008. (Attachments: # 1 Certificate of Service for U.S. Attorney General, # 2 Certificate of Service for U.S. Immigration and Customs Enforcement, # 3 Summons Returned Executed for U.S. Attorney)(BISHOP, HEATHER) (Entered: 07/31/2008)
45 SUMMONS Returned Executed by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. SCOTT WEBER served on 6/4/2008, answer due 8/4/2008. (Attachments: # 1 Certificate of Service for U.S. Attorney General, # 2 Certificate of Service for U.S. Immigration and Customs Enforcement, # 3 Summons Returned Executed for U.S. Attorney)(BISHOP, HEATHER) (Entered: 07/31/2008)
46 SUMMONS Returned Executed by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. BARTOLOME RODRIGUEZ served on 6/4/2008, answer due 8/4/2008. (Attachments: # 1 Certificate of Service for U.S. Attorney General, # 2 Certificate of Service for U.S. Immigration and Customs Enforcement, # 3 Summons Returned Executed for U.S. Attorney)(BISHOP, HEATHER) (Entered: 07/31/2008)
47 REPLY to Response to Motion re 34 MOTION to Dismiss Plaintiffs' Request for Equitable Relief filed by JULIE L.

08/01/2008
08/19/2008 08/20/2008 08/21/2008 08/28/2008
09/03/2008 09/04/2008

MYERS, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN DOE ICE AGENTS 1-50. (Attachments: # 1Certificate of Service)(JUNCAJ, GJON) (Entered: 08/01/2008)
48 CERTIFICATE of Counsel re 41 Order to Produce Publicly Available Documents by GJON JUNCAJ on behalf of JULIE L. MYERS, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN DOE ICE AGENTS 1-50 (Attachments: # 1Certificate of Service)(JUNCAJ, GJON) (Entered: 08/01/2008)
Motions No Longer Referred: 16 MOTION for Order to Show Cause (jq, ) (Entered: 08/19/2008)
49 SCHEDULING ORDER as to 35 MOTION to Dismiss.( Motion Hearing set for 10/30/2008 11:00 AM before Judge Peter G. Sheridan.). Signed by Judge Peter G. Sheridan on 8/20/08. (dc, ) (Entered: 08/20/2008)
50 ORDER admitting Bassina Farbenblum, Esq. pro hac vice. Signed by Magistrate Judge Esther Salas on 8/20/08. (dc, ) (Entered: 08/21/2008)
51 NOTICE of Appearance by MELANIE SUZANNE KEIPER on behalf of JULIE L. MYERS, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN DOE ICE AGENTS 1-50 (KEIPER, MELANIE) (Entered: 08/28/2008)
Pro Hac Vice fee: $ 150, receipt number 353433 for Bassina Farbenblum, Esq. (dc, ) (Entered: 09/05/2008)
52 Minute Entry for proceedings held before Judge Peter G. Sheridan: Motion Hearing held on 9/4/2008 re 35 MOTION to Dismiss filed by SCOTT WEBER, JOHN P. TORRES, JULIE L. MYERS, BARTOLOME RODRIGUEZ, 34MOTION to Dismiss Plaintiffs' Request for Equitable Relief filed by JOHN SOE ICE SUPERVISORS 1-25, SCOTT WEBER, JOHN P. TORRES, JOHN DOE ICE AGENTS 1-50, JULIE L. MYERS, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), BARTOLOME RODRIGUEZ, 16 MOTION for Order to Show Cause filed by Walter Chavez, W.C., by and through his

09/04/2008 09/08/2008 09/09/2008 09/10/2008 09/10/2008 09/12/2008 09/15/2008
09/18/2008

parents Walter Chavez and Ana Galindo, Ana Galindo. (Court Reporter/Recorder Ira Rubenstein.) (dh, ) (Entered: 09/08/2008)
59 Amended/Minute Entry for proceedings held before Judge Peter G. Sheridan: Telephone Conference held on 9/4/2008. (Disregard entry #58) (Court Reporter/Recorder Ira Rubenstein.) (dh, ). (Entered: 09/17/2008)
53 ORDER granting in part and denying in part 34 Motion to Dismiss. Signed by Judge Peter G. Sheridan on 9/5/08. (dc, ) (Entered: 09/08/2008)
58 Minute Entry for proceedings held before Judge Peter G. Sheridan: Telephone Conference held on 9/9/2008. (Court Reporter/Recorder Ira Rubenstein.) (dh, ) (Entered: 09/16/2008)
54 Notice of Request by Pro Hac Vice Bassina Farbenblum to receive Notices of Electronic Filings. (PARRILLA, AURORA) (Entered: 09/10/2008)
55 Letter from Scott Walker. (PARRILLA, AURORA) (Entered: 09/10/2008)
56 ORDER granting pltfs. permission to file an overlength opposition brief in connection w/the motion to dismiss.. Signed by Judge Peter G. Sheridan on 9/11/08. (DD, ) (Entered: 09/12/2008)
57 BRIEF in Opposition re 35 MOTION to Dismiss filed by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (Attachments: # 1Certification of Scott L. Walker in Support of Plaintiffs' Opposition to Individual Defendants' Partial Motion to Dismiss, # 2 Exhibit A to Walker Certification, # 3 Exhibit B to Walker Certification, # 4 Exhibit C to Walker Certification, # 5Exhibit D to Walker Certification, # 6 Exhibit E to Walker Certification, # 7Certificate of Service)(WALKER, SCOTT) (Entered: 09/15/2008)
60 Application and Proposed Order for Clerk's Order to extend time to answer as to Amended Complaint. (KEIPER, MELANIE) Referred to chambers. Modified on 9/19/2008 (dc, (Entered: 09/18/2008)

09/19/2008 09/19/2008
09/23/2008 09/23/2008 10/01/2008 10/02/2008 10/06/2008
10/13/2008 10/15/2008 10/20/2008 10/20/2008 10/20/2008

61 Letter re 15 Amended Complaint,,. (Attachments: # 1 Text of Proposed Order Consent Order to Extend Time)(KEIPER, MELANIE) (Entered: 09/19/2008)
62 Letter re 15 Amended Complaint,,. (Attachments: # 1 Statement Corrected Letter, # 2 Text of Proposed Order Corrected Consent Order to Extend Time)(KEIPER, MELANIE) (Entered: 09/19/2008)
63 ORDER granting application for extension of time to answer, move or, or otherwise plead (Docket Item No. 60.) Signed by Judge Peter G. Sheridan on 9/23/08. (dc, ) (Entered: 09/23/2008)
Update Answer Due Deadline as to Defts. (dc, ) (Entered: 09/23/2008)
64 Letter from Sarah Whitman. (WHITMAN, SARAH) (Entered: 10/01/2008)
65 ORDER, granting Defts' request to submit a (25) page Reply Brief. Signed by Judge Peter G. Sheridan on 10/2/08. (dc, ) (Entered: 10/02/2008)
66 REPLY to Response to Motion re 35 MOTION to Dismiss filed by JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 10/06/2008)
67 Letter from plaintiffs requesting leave to file sur-reply on or before October 20, 2008 re 66 Reply to Response to Motion. (WALKER, SCOTT) (Entered: 10/13/2008)
68 Order granting plaintiffs seven pages in the sur-reply papers. (dh, ) (Entered: 10/15/2008)
69 Letter from Sarah Whitman. (WHITMAN, SARAH) (Entered: 10/20/2008)
70 Letter from Scott L. Walker re 69 Letter. (Attachments: # 1 Exhibit to Letter to Judge Sheridan re: Proposed Second Amended Complaint)(WALKER, SCOTT) (Entered: 10/20/2008)
71 BRIEF in Opposition re 35 MOTION to Dismiss : Sur-reply to Reply by Individual Defendants filed by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA,

10/28/2008 10/29/2008
10/30/2008 10/31/2008 11/07/2008 11/07/2008 11/12/2008 11/14/2008

VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (Attachments: # 1 Certificate of Service in Support of Plaintiffs' Sur-reply in Further Opposition to Motion to Dismiss by the Individual Defendants)(WALKER, SCOTT) (Entered: 10/20/2008)
72 Letter from Sarah Whitman. (WHITMAN, SARAH) (Entered: 10/28/2008)
73 TRANSCRIPT of Proceedings held on September 4, 2008 before Judge Sheridan. Court Reporter/Recorder: Ira N. Rubenstein. PLEASE NOTE: The complete transcript of these proceedings is maintained in paper format on file in the Clerks Office. To request copies of this transcript, contact the Official Court Reporter or Transcription Service who prepared the transcript. (ji, ) (Entered: 10/29/2008)
75 Minute Entry for proceedings held before Judge Peter G. Sheridan: Motion Hearing held on 10/30/2008 re 35 MOTION to Dismiss filed by SCOTT WEBER, JOHN P. TORRES, JULIE L. MYERS, BARTOLOME RODRIGUEZ. (Court Reporter/Recorder Ira Rubenstein.) (dh, ) (Entered: 11/06/2008)
74 Letter from United States Defendants Regarding Consent To Extend Time To File Answer re Update Answer Due Deadline, 15 Amended Complaint,, 63Order. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(JUNCAJ, GJON) (Entered: 10/31/2008)
76 ORDER granting the United States Defts' request and that the United States Defts' response to the Amended Complaint in this matter will now be due on 12/5/08. Signed by Judge Peter G. Sheridan on 11/6/08. (dc, ) (Entered: 11/07/2008)
Update Answer Due Deadline as to United States Defts. to 12/5/08. (dc, ) (Entered: 11/07/2008)
77 Notice parties may submit letter memoranda on this issue of resignation of defendant Julie Myers - no more than three pages, double-spaced type by Tuesday, November 18, 2008. (dh, ) (Entered: 11/13/2008)
78 NOTICE by the Court re resignation of deft. Julie Myers and whether her resignation affects Pltfs' claims and Defts' pending partial motion to dismiss. (dc, ) (Entered: 11/14/2008)

11/18/2008 11/18/2008 11/18/2008 12/01/2008 12/03/2008 12/04/2008 12/05/2008
12/08/2008 12/11/2008 12/16/2008

79 Letter from plaintiffs regarding effects of resignation of defendant Julie Myers re 78 Notice (Other). (WALKER, SCOTT) (Entered: 11/18/2008)
80 Letter from Sarah Whitman on Behalf of Individual Federal Defendants in Response to November 12, 2008 Notice from the Court re 77 Notice (Other). (WHITMAN, SARAH) (Entered: 11/18/2008)
81 Letter from Gjon Juncaj on Behalf of Official Capacity Federal Defendants in Response to November 12, 2008 Notice from the Court re 77 Notice (Other). (JUNCAJ, GJON) (Entered: 11/18/2008)
82 REQUEST FOR INFORMATION from Peter G. Sheridan, U.S.D.J.. (dc, ) (Entered: 12/01/2008)
83 NOTICE: If plaintiffs still wish to submit a Second Amended Complaint. They must first move for leave of court by HON. PETER G. SHERIDAN (dh, ) (Entered: 12/05/2008)
84 REQUEST FOR INFORMATION. by HON. PETER G. SHERIDAN (dh, ) (Entered: 12/05/2008)
85 United States Defendants' ANSWER to Amended Complaint by JULIE L. MYERS, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN DOE ICE AGENTS 1-50. (Attachments: # 1 Certificate of Service)(JUNCAJ, GJON) (Entered: 12/05/2008)
86 Letter from plaintiffs' counsel in response to 12-5-08 court notices re 83 Notice (Other), 84 Notice (Other). (WALKER, SCOTT) (Entered: 12/08/2008)
87 Letter from Sarah Whitman on Behalf of Individual Federal Defendants in Response to December 4, 2008 Request for Information from the Court re 84Notice (Other). (WHITMAN, SARAH) (Entered: 12/11/2008)
88 Letter from Melanie Keiper on Behalf of Defendants in their Official Capacity in Response to December 1, 2008 Request for Information from the Court re 82Letter. (KEIPER, MELANIE) (Entered: 12/16/2008)

01/09/2009 02/03/2009
02/06/2009 02/10/2009 05/01/2009 05/07/2009 05/07/2009 05/08/2009 05/12/2009
05/18/2009 05/20/2009

89 Letter from Sarah Whitman on Behalf of Individual Federal Defendants in Response to the Court's December 4 Request for Information re 84 Notice (Other). (WHITMAN, SARAH) (Entered: 01/09/2009)
90 NOTICE by JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ Notice of Supplemental Authority (Attachments: # 1 Exhibit Pearson v Callahan, # 2 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/03/2009)
91 Letter from Scott L.Walker on behalf of plaintiffs re 82 Letter, 35 MOTION to Dismiss, 90 Notice (Other), 77 Notice (Other). (Attachments: # 1 Certificate of Service)(WALKER, SCOTT) (Entered: 02/06/2009)
92 Letter from Sarah Whitman on Behalf of Individual Federal Defendants re 91Letter. (WHITMAN, SARAH) (Entered: 02/10/2009)
93 Letter from A. Parrilla. (PARRILLA, AURORA) (Entered: 05/01/2009)
94 OPINION. Signed by Judge Peter G. Sheridan on 5/6/09. (dc, ) (Entered: 05/07/2009)
95 ORDER granting in part and denying in part 35 Motion to Dismiss. Signed by Judge Peter G. Sheridan on 5/6/09. (dc, ) (Entered: 05/07/2009)
96 Letter from Individual Federal Defendants' Counsel Seeking Extension of Time. (Attachments: # 1 Text of Proposed Order)(WHITMAN, SARAH) (Entered: 05/08/2009)
97 ORDER Ordered that on or before 6/8/09, Defts. Myers, Torres, Weber and Rodriguez shall respond to Pltfs' First Amended Complaint, and that the parties have from 6/8/09 to 9/8/09 to conduct the Court-ordered limited discovery as specified in the Court's 5/6/09 Order. Signed by Judge Peter G. Sheridan on 5/11/09. (dc, ) (Entered: 05/12/2009)
98 Letter from Counsel for Individual Federal Defendants re: Deadline for Motion for Reconsideration. (Attachments: # 1 Text of Proposed Order)(WHITMAN, SARAH) (Entered: 05/18/2009)
99 MOTION for Reconsideration re 94 Opinion, 95 Order on Motion to Dismiss by JULIE L. MYERS, JOHN P. TORRES, SCOTT

05/20/2009 05/21/2009 05/26/2009
05/26/2009 05/29/2009 05/31/2009

WEBER, BARTOLOME RODRIGUEZ. (Attachments: # 1 Brief in Support of Motion, # 2 Text of Proposed Order Granting Motion for Reconsideration, # 3 Certificate of Service)(WHITMAN, SARAH) (Entered: 05/20/2009)
Set Hearing as to 99 MOTION for Reconsideration re 94 Opinion, 95 Order on Motion to Dismiss MOTION for Reconsideration re 94 Opinion, 95 Order on Motion to Dismiss. Motion set for 6/15/2009 10:00 AM before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (cs, ) (Entered: 05/27/2009)
100 ORDER stating that any party seeking to file a motion for reconsideration of the Court's May 6, 2009 order and opinion must do so on or before 6/2/09. Signed by Judge Peter G. Sheridan on 5/21/09. (cs, ) (Entered: 05/22/2009)
CLERK'S QUALITY CONTROL MESSAGE: BASSINA FARBENBLUM, does not have a correct e-mail address listed with the court and is not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e-mail address changes. The court has deleted the invalid e-mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (sa, ) (Entered: 05/26/2009)
101 Letter from Plaintiffs with Proposed Order adjourning time to replead as to anonymous plaintiffs re 97 Order, 95 Order on Motion to Dismiss. (WALKER, SCOTT) (Entered: 05/26/2009)
102 ORDER Ordered that, Pltfs' deadline for filing a Second Amended Complaint revealing the identities of the anonymous Pltfs. who wish to proceed in their own name shall be and is hereby extended until 6/8/09; that Defts. shall answer any such Second Amended complaint on or before 6/18/09, etc., Signed by Judge Peter G. Sheridan on 5/29/09. (dc, ) (Entered: 05/29/2009)
103 Letter from plaintiffs to Clerk invoking automatic extension provision of Local Rule 7.1(d)(5) and setting new return date for motion re 99 MOTION for Reconsideration re 94 Opinion, 95 Order on Motion to Dismiss MOTION for Reconsideration re 94 Opinion, 95 Order on Motion to Dismiss,

06/03/2009 06/08/2009 06/08/2009
06/18/2009 06/18/2009 06/18/2009 06/22/2009

Set/Reset Motion and R&R Deadlines/Hearings,. (WALKER, SCOTT) (Entered: 05/31/2009)
104 Letter from Counsel for Individual Federal Defendants re:Stay request until Motion for Reconsideration is adjudicated. (Attachments: # 1 Text of Proposed Order)(MARTIN, EDWARD) (Entered: 06/03/2009)
105 ORDER Ordered that, individual federal defts. Myers, Torres, Weber and Rodriguez's response to the pltf.'s First Amended Complaint and the limited discovery specified in the Court's 5/6/09 Order are hereby stayed until the Motion for Reconsideration filed by these individual federal defts. on 5/20/09 is adjudicated, etc., Signed by Judge Peter G. Sheridan on 6/5/09. (dc, ) (Entered: 06/08/2009)
106 AMENDED COMPLAINT against all defendants all defendants., filed by Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 3. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C--part 1, # 4 Exhibit C--part 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Certificate of Service)(WALKER, SCOTT) (Entered: 06/08/2009)
107 United States Defendants' ANSWER to Amended Complaint by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ, JOHN SOE ICE SUPERVISORS 1-25, JOHN DOE ICE AGENTS 1-50. (Attachments: # 1Certificate of Service)(JUNCAJ, GJON) (Entered: 06/18/2009)
108 MOTION to Dismiss Second Amended Complaint by JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ. Responses due by 7/6/2009 (Attachments: # 1 Brief in Support of Motion, # 2 Text of Proposed Order, # 3 Certificate of Service)(WHITMAN, SARAH) (Entered: 06/18/2009)
Set Deadlines as to 108 MOTION to Dismiss Second Amended Complaint. Motion set for 7/20/2009 before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (dc, ) (Entered: 06/22/2009)
109 BRIEF in Opposition re 99 MOTION for Reconsideration re 94 Opinion, 95Order on Motion to Dismiss MOTION for

07/02/2009 07/15/2009
07/15/2009 07/15/2009
07/15/2009 07/15/2009 07/20/2009

Reconsideration re 94 Opinion, 95Order on Motion to Dismiss filed by Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 3. (Attachments: # 1 Certificate of Service)(WALKER, SCOTT) (Entered: 06/22/2009)
110 Letter from Plaintiffs resetting return date and date for opposition papers for Individual Defendants' Motion to Dismiss Second Amended Complaint re 108MOTION to Dismiss Second Amended Complaint, Set/Reset Motion and R&R Deadlines/Hearings. (WALKER, SCOTT) (Entered: 07/02/2009)
111 MOTION for Leave to Appear Pro Hac Vice Mark Noferi, Esq. by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (Attachments: # 1Certification Certification of Baher Azmy, # 2 Text of Proposed Order Proposed Order)(AZMY, BAHER) (Entered: 07/15/2009)
112 Letter from Mark Noferi, Esq.. (Attachments: # 1 Exhibit Exhibit A)(AZMY, BAHER) (Entered: 07/15/2009)
113 MOTION for Leave to Appear Pro Hac Vice L. Danielle Tully, Esq. by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (Attachments: # 1Certification Certification of Baher Azmy, # 2 Text of Proposed Order Proposed Order)(AZMY, BAHER) (Entered: 07/15/2009)
114 Letter from Mark Noferi, Esq.. (AZMY, BAHER) (Entered: 07/15/2009)
CLERKS QUALITY CONTROL MESSAGE - Motions were not submitted with the Nos. 111 & 113 Motions for Leave to Appear Pro Hac Vice submitted by Baher Azmy on 7/15/09. PLEASE SUBMIT THE MISSING DOCUMENT(S) ONLY. (dc, ) (Entered: 07/16/2009)
115 MEMORANDUM in Opposition re 108 MOTION to Dismiss Second Amended Complaint filed by Walter Chavez, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana

07/23/2009
07/23/2009
07/27/2009
07/27/2009 08/07/2009 08/11/2009 08/11/2009 09/07/2009

Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 3. (Attachments: # 1 Certificate of Service)(WALKER, SCOTT) (Entered: 07/20/2009)
116 MOTION for Leave to Appear Pro Hac Vice Mark Noferi, Esq. by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (AZMY, BAHER) (Entered: 07/23/2009)
117 MOTION for Leave to Appear Pro Hac Vice L. Danielle Tully, Esq. by Walter Chavez, CARLOS ROE 4, Ana Galindo, W.C., by and through his parents Walter Chavez and Ana Galindo, MARIA ARGUETA, ARTURO FLORES, BYBYANA ARIAS, JUAN ONTANEDA, VERONICA COVIAS, CARLA ROE 1, CARLA ROE 2, CARLOS ROE 2, CARLA ROE 3. (AZMY, BAHER) (Entered: 07/23/2009)
118 ORDER granting 111 Motion for Leave to Appear Pro Hac Vice; granting 113Motion for Leave to Appear Pro Hac Vice; granting 116 Motion for Leave to Appear Pro Hac Vice; granting 117 Motion for Leave to Appear Pro Hac Vice. Signed by Magistrate Judge Esther Salas on 7/27/09. (dc, ) (Entered: 07/27/2009)
119 REPLY BRIEF to Opposition to Motion re 108 MOTION to Dismiss Second Amended Complaint filed by JULIE L. MYERS, JOHN P. TORRES, SCOTT WEBER, BARTOLOME RODRIGUEZ. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 07/27/2009)
Pro Hac Vice fee: $ 300, receipt number 357851 for Mark Noferi and L. Daniel Le Tully. (dc, ) (Entered: 08/07/2009)
120 Notice of Request by Pro Hac Vice Mark Noferi, Esq. to receive Notices of Electronic Filings. (AZMY, BAHER) (Entered: 08/11/2009)
121 Notice of Request by Pro Hac Vice L. Danielle Tully, Esq. to receive Notices of Electronic Filings. (AZMY, BAHER) (Entered: 08/11/2009)
122 Letter from United States Defendants. (KEIPER, MELANIE) (Entered: 09/07/2009)

09/11/2009
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11/06/2009 11/06/2009 11/13/2009 12/31/2009

123 ORDER, ( Initial Conference set for 11/2/2009 at 2:00 PM in Newark - Courtroom 2D before Magistrate Judge Esther Salas.) A JOINT DISCOVERY PLAN MUST BE SUBMITTED 7 DAYS PRIOR TO THE CONFERENCE. CM/ECF IS MANDATORY FOR ALL FILINGS. Should you have any questions please call (973) 297-4887. Signed by Magistrate Judge Esther Salas on 9/11/09. (jq, ) (Entered: 09/11/2009)
124 Letter from Individual Federal Defendants Regarding Order for Scheduling Conference. (WHITMAN, SARAH) (Entered: 10/05/2009)
125 LETTER ORDER, scheduling a telephone status conference for 10/21/2009 10:30 AM before Magistrate Judge Esther Salas, etc., Signed by Magistrate Judge Esther Salas on 10/13/09. (dc, ) (Entered: 10/15/2009)
Minute Entry for proceedings held before Magistrate Judge Esther Salas: Status Conference held on 10/21/2009. (jq, ) (Entered: 10/21/2009)
Minute Entry for proceedings held before Magistrate Judge Esther Salas: Scheduling Conference held on 11/2/2009. (jq, ) (Entered: 11/02/2009)
126 PRETRIAL SCHEDULING ORDER: Telephone Status Conference set for 1/14/2010 11:00 AM before Magistrate Judge Esther Salas. Amended Pleadings due by 1/29/2010. Discovery due by 6/1/2010. Joinder of Parties due by 1/29/2010, etc., Signed by Magistrate Judge Esther Salas on 11/2/09. (dc, ) (Entered: 11/04/2009)
127 Letter from United States Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(KEIPER, MELANIE) (Entered: 11/06/2009)
128 NOTICE of Appearance by NICOLE ROGERS PRAIRIE on behalf of all defendants (PRAIRIE, NICOLE) (Entered: 11/06/2009)
129 Letter from Plaintiffs re 127 Letter. (Attachments: # 1 Exhibit A)(BISHOP, HEATHER) (Entered: 11/13/2009)
130 Letter from United States Defendants. (Attachments: # 1 Exhibit 1-3)(PRAIRIE, NICOLE) (Entered: 12/31/2009)

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131 Letter from plaintiffs Walter Chavez, Ana Galindo and W.C. responding to US Defendants 12-31-09 letter re 130 Letter. (Attachments: # 1 Exhibit A through F)(WALKER, SCOTT) (Entered: 01/12/2010)
132 Letter from United States Defendants re 131 Letter. (Attachments: # 1 Exhibit 1-3)(PRAIRIE, NICOLE) (Entered: 01/13/2010)
133 Letter from United States Defendants re 132 Letter. (JUNCAJ, GJON) (Entered: 01/13/2010)
Minute Entry for proceedings held before Magistrate Judge Esther Salas: Status Conference held on 1/14/2010. (jq, ) (Entered: 01/14/2010)
134 LETTER ORDER Ordered that, the parties will prepare and file a joint submission outlining any and all pending discovery disputes, etc., Signed by Magistrate Judge Esther Salas on 1/15/10. (dc, ) (Entered: 01/15/2010)
135 OPINION. Signed by Judge Peter G. Sheridan on 1/27/10. (dc, ) (Entered: 01/28/2010)
136 ORDER denying 108 Motion to Dismiss except with respect to pltf. Ontaneda's equal protection claim which is dismissed, etc., Signed by Judge Peter G. Sheridan on 1/27/10. (dc, ) (Entered: 01/28/2010)
137 ORDER extending time for United States Defts. to propound interrogatories and document requests upon Pltfs. until 2/12/10. Signed by Magistrate Judge Esther Salas on 2/2/10. (dc, ) (Entered: 02/02/2010)
138 ORDER extending deadlines as to motions to amend pleadings and add new parties to 3/15/10 re #126 Pretrial Scheduling Order. Signed by Magistrate Judge Esther Salas on 2/2/10. (dc, ) (Entered: 02/05/2010)
139 NOTICE OF APPEAL as to 94 Opinion, 135 Opinion, 136 Order on Motion to Dismiss, 95 Order on Motion to Dismiss by JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, SCOTT WEBER. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/09/2010)

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03/12/2010

140 ORDER adjourning deadline for any motion for leave to amend pltfs' complaint to 4/5/10, etc., to. Signed by Magistrate Judge Esther Salas on 2/18/10. (dc, ) (Entered: 02/18/2010)
141 TRANSCRIPT REQUEST by JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, SCOTT WEBER for proceedings held on 10/30/08 before Judge Sheridan, (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/19/2010)
142 LETTER ORDER re adjournment of the deadline for motions for leave to amend, etc.,. Signed by Magistrate Judge Esther Salas on 2/19/10. (dc, ) (Entered: 02/19/2010)
143 TRANSCRIPT REQUEST by JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, SCOTT WEBER for proceedings held on October 30, 2008 before Judge Sheridan. (ji, ) (Entered: 02/22/2010)
144 USCA Case Number 10-1479 for 139 Notice of Appeal (USCA), Notice of Appeal (USCA) filed by SCOTT WEBER, JOHN P. TORRES, JULIE L. MYERS, BARTOLOME RODRIGUEZ. USCA Case Manager Phyllis Ruffin (Document Restricted - Court Only) (Ruffin, Phyllis) (Entered: 02/25/2010)
145 Transcript of Proceedings held on October 30, 2008, before Judge Sheridan. Court Reporter/Transcriber Ira Rubenstein, Telephone number 732-672-3356. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. If no such notice is filed, the transcript will be made remotely available in electronic format to the public without redaction after ninety(90) calendar days. The redaction policy is located on our website at www.njd.uscourts.gov. Transcripts may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for release of transcript restriction. After that date it may be obtained through PACER. Redaction Request due 3/26/2010. Redacted Transcript Deadline set for 4/5/2010. Release of Transcript Restriction set for 6/3/2010. (ji, ) (Entered: 03/05/2010)
146 MOTION to Amend/Correct Plaintiffs' Second Amended Complaint by MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 1, CARLA ROE 2, CARLA ROE 3, CARLOS ROE 2, CARLOS ROE 4, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo.

03/12/2010 03/12/2010
03/12/2010 03/15/2010 03/22/2010 03/22/2010

(Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(KRANER, NATALIE) (Entered: 03/12/2010)
147 Certification on behalf of MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 1, CARLA ROE 2, CARLA ROE 3, CARLOS ROE 2, CARLOS ROE 4, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo Re 146 Motion to Amend/Correct,. (KRANER, NATALIE) (Entered: 03/12/2010)
148 MOTION for Leave to File Third Amended Complaint by MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 3, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo. (Attachments: # 1 Text of Proposed Order, # 2 Brief in Support of Motion for Leave to Amend, # 3 Certification of Natalie J. Kraner in support of Motion for Leave to Amend, # 4 Exhibit A, # 5Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10Certificate of Service)(KRANER, NATALIE) (Entered: 03/12/2010)
Set Deadlines as to 148 MOTION for Leave to File Third Amended Complaint. Motion set for 4/5/2010 before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (dc, ) (Entered: 03/24/2010)
CLERK'S NOTE: Please disregard documents 146 and 147. Counsel refiled (please see doc #148) (jd, ) (Entered: 03/15/2010)
149 RESPONSE to Motion re 148 MOTION for Leave to File Third Amended Complaint filed by JOHN DOE ICE AGENTS 1-50, JOHN SOE ICE SUPERVISORS 1-25, JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), SCOTT WEBER. (KEIPER, MELANIE) (Entered: 03/22/2010)
150 MOTION to Stay by JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, SCOTT WEBER. (Attachments: # 1 Brief, # 2 Declaration, # 3Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Text of Proposed Order, # 8 Certificate of Service)(MARTIN, EDWARD) (Entered: 03/22/2010)

03/22/2010 03/22/2010 03/23/2010
03/24/2010 03/25/2010
03/29/2010 03/29/2010

151 BRIEF in Opposition re 148 MOTION for Leave to File Third Amended Complaint filed by JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, SCOTT WEBER. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 03/22/2010)
Set Deadlines as to 150 MOTION to Stay. Motion set for 4/19/2010 before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (dc, ) (Entered: 03/24/2010)
CLERK'S QUALITY CONTROL MESSAGE: DAVID MARSHALL REINER, does not have a correct e-mail address listed with the court and is not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e-mail address changes. The court has deleted the invalid e-mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (sa, ) (Entered: 03/23/2010)
152 Letter from Heather C. Bishop, Esq. on behalf of Plaintiffs to the Honorable Esther Salas, U.S.M.J.. (BISHOP, HEATHER) (Entered: 03/24/2010)
153 STIPULATION re 151 Brief in Opposition to Motion, 148 MOTION for Leave to File Third Amended Complaint withdrawing Individual Federal Defendants' Opposition to Motion and Stipulating that Individual Federal Defendants Take No Position regarding Motion by MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 3, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JULIE L. MYERS, JUAN ONTANEDA, BARTOLOME RODRIGUEZ, JOHN P. TORRES, W.C., by and through his parents Walter Chavez and Ana Galindo, SCOTT WEBER. (WALKER, SCOTT) (Entered: 03/25/2010)
154 LETTER ORDER scheduling a telephone status conference for 3/31/2010 01:30 PM before Magistrate Judge Esther Salas, etc., Signed by Magistrate Judge Esther Salas on 3/29/10. (dc, ) (Entered: 03/30/2010)
155 STIPULATION AND ORDER withdrawing Individual Federal Defendants' Opposition to Motion and Stipulating that Individual Federal Defendants Take No Position regarding Motion

03/30/2010 03/31/2010 03/31/2010 04/01/2010 04/01/2010 04/05/2010
04/12/2010 04/12/2010

re 151 Brief in Opposition to Motion, 148MOTION for Leave to File Third Amended Complaint, etc., Signed by Magistrate Judge Esther Salas on 3/29/10. (dc, ) (Entered: 03/30/2010)
156 Letter from counsel to plaintiffs enclosing proposed joint stipulation related to production of confidential documents pending the Court's resolution of the parties' DCO dispute. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(WALKER, SCOTT) (Entered: 03/30/2010)
Minute Entry for proceedings held before Magistrate Judge Esther Salas: Status Conference held on 3/31/2010. (jq, ) (Entered: 03/31/2010)
157 STIPULATION AND ORDER re production of confidential documents pending the Court's resolution of the parties' DCO dispute. Signed by Magistrate Judge Esther Salas on 3/31/10. (dc, ) (Entered: 04/01/2010)
CHAMBERS NOTE: Please be advised that the argument scheduled for 5/3/2010 has been CANCELLED. (jq, ) (Entered: 04/01/2010)
158 ORDER granting 148 Motion for Leave to File. Signed by Magistrate Judge Esther Salas on 4/1/10. (dc, ) (Entered: 04/05/2010)
159 BRIEF in Opposition re 150 MOTION to Stay filed by MARIA ARGUETA, BYBYANA ARIAS, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo. (Attachments: # 1 Certification of Natalie J. Kraner in Support of Plaintiffs' Memorandum of Law in Opposition to the Supervisory Defendants' Motion to Stay All Discovery, # 2 Exhibit A to Kraner Certification, # 3 Exhibit B to Kraner Certification, # 4 Exhibit C to Kraner Certification, # 5 Certificate of Service)(WALKER, SCOTT) (Entered: 04/05/2010)
160 Letter from Scott L. Walker. (WALKER, SCOTT) (Entered: 04/12/2010)
161 REPLY to Response to Motion re 150 MOTION to Stay filed by JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, SCOTT WEBER. (Attachments: # 1 Attachment, # 2 Certification of Service)(MARTIN, EDWARD) (Entered: 04/12/2010)

04/16/2010
04/20/2010 04/26/2010 05/04/2010 05/04/2010

162 AMENDED COMPLAINT (Third) against JULIE L. MYERS, BARTOLOME RODRIGUEZ, JOHN P. TORRES, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), SCOTT WEBER, John Morton, Alonzo R. Penna, Agent 1, Agent 2, Agent 3, Agent 4, Agent 5, Agent 6, Agent 7, Agent 8, Agent 9, Agent 10, Agent 11, Agent 12, Agent 13, Agent 14, Agent 15, Agent 16, Agent 17, Agent 18, Agent 19, Agent 20, Agent 21, Agent 22, Agent 23, Agent 24, Agent 25, Agent 26, Agent 27, Agent 28, Agent 29, Agent 30, Agent 31, John Doe ICE Agents 1- 18, John Soe ICE Supervisors 1-15, Carmen Hernandez, Jason Spera, Joseph DiCarolis, filed by ARTURO FLORES, MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 3, Ana Galindo, Walter Chavez, JUAN ONTANEDA, VERONICA COVIAS, W.C., by and through his parents Walter Chavez and Ana Galindo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C - Part 1, # 4 Exhibit C - Part 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Certificate of Service)(WALKER, SCOTT) (Entered: 04/16/2010)
Set/Reset Hearings: Status Conference set for 6/30/2010 at 10:00 AM in Trenton - Courtroom 7W before Judge Peter G. Sheridan. (dh, ) (Entered: 04/20/2010)
163 United States Defendants' ANSWER to Amended Complaint Third by Agent 1, Agent 10, Agent 11, Agent 12, Agent 13, Agent 14, Agent 15, Agent 16, Agent 17, Agent 18, Agent 19, Agent 2, Agent 20, Agent 21, Agent 22, Agent 23, Agent 24, Agent 25, Agent 26, Agent 27, Agent 28, Agent 29, Agent 3, Agent 30, Agent 31, Agent 4, Agent 5, Agent 6, Agent 7, Agent 8, Agent 9, John Soe ICE Supervisors 1-15, John Morton, Alonzo R. Penna, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), SCOTT WEBER.(KEIPER, MELANIE) (Entered: 04/26/2010)
Set/Reset Hearings: Telephone Conference set for 5/10/2010 at 10:00 AM in Trenton - Courtroom 7W before Judge Peter G. Sheridan. (dh, ) (Entered: 05/04/2010)
164 NOTICE of Appearance by FRANK THOMAS MORE CATALINA on behalf of MARIA ARGUETA, BYBYANA ARIAS, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo (CATALINA, FRANK) (Entered: 05/04/2010)

05/07/2010
05/07/2010 05/07/2010 05/07/2010 05/07/2010 05/10/2010 05/18/2010

165 SUMMONS ISSUED on Third Amended Complaint thru counsel Lowenstein Sandler PC as to Agent 1, Agent 10, Agent 11, Agent 12, Agent 13, Agent 14, Agent 15, Agent 16, Agent 17, Agent 18, Agent 19, Agent 2, Agent 20, Agent 21, Agent 22, Agent 23, Agent 24, Agent 25, Agent 26, Agent 27, Agent 28, Agent 29, Agent 3, Agent 30, Agent 31, Agent 4, Agent 5, Agent 6, Agent 7, Agent 8, Agent 9 with answer to complaint due within 60 days. (Attachments: # 1 Summons Agent 15-31)(mn, ) (Entered: 05/07/2010)
166 Request for Summons to be Issued by ARTURO FLORES, MARIA ARGUETA, Walter Chavez, W.C., by and through his parents Walter Chavez and Ana Galindo, BYBYANA ARIAS, Ana Galindo, CARLA ROE 3, JUAN ONTANEDA, VERONICA COVIAS as to Joseph DiCarolis. (CATALINA, FRANK) (Entered: 05/07/2010)
167 Request for Summons to be Issued by ARTURO FLORES, MARIA ARGUETA, Walter Chavez, W.C., by and through his parents Walter Chavez and Ana Galindo, BYBYANA ARIAS, Ana Galindo, CARLA ROE 3, JUAN ONTANEDA, VERONICA COVIAS as to Jason Spera. (CATALINA, FRANK) (Entered: 05/07/2010)
168 Request for Summons to be Issued by ARTURO FLORES, MARIA ARGUETA, Walter Chavez, W.C., by and through his parents Walter Chavez and Ana Galindo, BYBYANA ARIAS, Ana Galindo, CARLA ROE 3, JUAN ONTANEDA, VERONICA COVIAS as to Carmen Hernandez. (CATALINA, FRANK) (Entered: 05/07/2010)
169 SUMMONS ISSUED as to Joseph DiCarolis, Carmen Hernandez, Jason Spera Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. Issued By *DARLENE CARR* RE 162AMENDED COMPLAINT (THIRD). (dc, ) (Entered: 05/10/2010)
171 Minute Entry for proceedings held before Judge Peter G. Sheridan: Motion Hearing held on 5/10/2010 re 150 MOTION to Stay filed by SCOTT WEBER, JOHN P. TORRES, JULIE L. MYERS, BARTOLOME RODRIGUEZ, Telephone Conference held on 5/10/2010. (Decision Reserved) (Court Reporter/Recorder Frank Gable.) (dh, ) (Entered: 05/20/2010)
170 ORDER granting 150 Motion to Stay. Signed by Judge Peter G. Sheridan on 5/18/10. (dc, ) (Entered: 05/19/2010)

06/02/2010 06/02/2010 06/02/2010
06/02/2010
06/15/2010

172 Letter from Natalie J. Kraner re: Consent Order on Service of Third Amended Complaint. (Attachments: # 1 Consent Order on Service)(KRANER, NATALIE) (Entered: 06/02/2010)
173 CONSENT ORDER ON SERVICE OF SUMMONSES AND THIRD AMENDED COMPLAINT ON AGENTS 1-8 AND 1031. Signed by Judge Peter G. Sheridan on 6/2/10. (dc, ) (Entered: 06/02/2010)
174 MOTION for Reconsideration re 170 Order on Motion to Stay All Discovery Against All Defendants, or, in the alternative, Motion for Certification for Interlocutory Appeal Under 28 U.S.C. 1292(b) by MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 3, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo. (Attachments: # 1 Brief in Support of Plaintiffs' Motion for Reconsideration, or, in the alternative, Motion for Certification for Interlocutory Appeal, # 2 Certification of Natalie J. Kraner, # 3Exhibit A to Kraner Cert., # 4 Exhibit B to Kraner Cert., # 5 Exhibit C to Kraner Cert., # 6 Exhibit D to Kraner Cert., # 7 Text of Proposed Order, # 8 Certificate of Service)(KRANER, NATALIE) (Entered: 06/02/2010)
Set Deadlines as to 174 MOTION for Reconsideration re 170 Order on Motion to Stay All Discovery Against All Defendants, or, in the alternative, Motion for Certification for Interlocutory Appeal Under 28 U.S.C. 1292(b) MOTION for Reconsideration re 170 Order on Motion to Stay All Discovery Against All Defendants, or, in the alternative, Motion for Certification for Interlocutory Appeal Under 28 U.S.C. 1292(b) MOTION for Reconsideration re 170 Order on Motion to Stay All Discovery Against All Defendants, or, in the alternative, Motion for Certification for Interlocutory Appeal Under 28 U.S.C. 1292(b)MOTION for Reconsideration re 170 Order on Motion to Stay All Discovery Against All Defendants, or, in the alternative, Motion for Certification for Interlocutory Appeal Under 28 U.S.C. 1292(b). Motion set for 7/6/2010 before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (dc, ) (Entered: 06/03/2010)
175 SUMMONS Returned Executed by ARTURO FLORES, MARIA ARGUETA, Walter Chavez, W.C., by and through his parents Walter Chavez and Ana Galindo, BYBYANA ARIAS, Ana Galindo, CARLA ROE 3, JUAN ONTANEDA, VERONICA

06/15/2010
06/15/2010
06/15/2010 06/18/2010 06/22/2010 06/22/2010 06/24/2010 06/24/2010

COVIAS. Joseph DiCarolis served on 5/26/2010, answer due 6/16/2010. (BISHOP, HEATHER) (Entered: 06/15/2010)
176 SUMMONS Returned Executed by ARTURO FLORES, MARIA ARGUETA, Walter Chavez, W.C., by and through his parents Walter Chavez and Ana Galindo, BYBYANA ARIAS, Ana Galindo, CARLA ROE 3, JUAN ONTANEDA, VERONICA COVIAS. Jason Spera served on 5/26/2010, answer due 6/16/2010. (BISHOP, HEATHER) (Entered: 06/15/2010)
177 SUMMONS Returned Executed by ARTURO FLORES, MARIA ARGUETA, Walter Chavez, W.C., by and through his parents Walter Chavez and Ana Galindo, BYBYANA ARIAS, Ana Galindo, CARLA ROE 3, JUAN ONTANEDA, VERONICA COVIAS. Carmen Hernandez served on 5/26/2010, answer due 6/16/2010. (BISHOP, HEATHER) (Entered: 06/15/2010)
178 ORDER denying 174 Motion for Reconsideration re 170 Order on Motion to Stay All Discovery Against All Defendants, or, in the alternative, Motion for Certification for Interlocutory Appeal Under 28 U.S.C. 1292(b). Signed by Judge Peter G. Sheridan on 6/15/10. (dc, ) (Entered: 06/17/2010)
179 STIPULATION Extending Time to Answer by Joseph DiCarolis, Carmen Hernandez, Jason Spera. (Attachments: # 1 Letter)(GELFAND, TODD) (Entered: 06/18/2010)
180 STIPULATION EXTENDING TIME TO ANSWER AND ORDER. Signed by Magistrate Judge Esther Salas on 6/22/10. (dc, ) (Entered: 06/23/2010)
Update Answer Due Deadline as to defts. CARMEN HERNANDEZ, JASON SPERA, and JOSEPH DICAROLIS TO 6/29/10. (dc, ) (Entered: 06/23/2010)
181 MOTION to Dismiss pursuant to F.R.C.P. 12(b)(6) by Carmen Hernandez, Jason Spera. Responses due by 7/6/2010 (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Certificate of Service)(GELFAND, TODD) (Entered: 06/24/2010)
Set Deadlines as to 181 MOTION to Dismiss pursuant to F.R.C.P. 12(b)(6). Motion set for 7/19/2010 before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (dc, ) (Entered: 06/25/2010)

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07/07/2010
07/12/2010 07/13/2010 07/17/2010 07/17/2010

182 Application and Proposed Order for Clerk's Order to extend time to answer as to Agents 1-8 and Agents 10-31.. (MARTIN, EDWARD) (Entered: 07/01/2010)
183 CLERKS TEXT ORDER - The Application for a Clerks Order Extending Time to Answer - Document # 182 submitted by E. MARTIN on 7/1/10 has been GRANTED. The answer due date has been set for 8/9/10. (dc, ) (Entered: 07/02/2010)
Update Answer Due Deadline as to Agents 1-8 and Agents 10-31 to 8/9/10. (dc, ) (Entered: 07/07/2010)
184 Rule 7.1 Letter for extension of return date re 181 MOTION to Dismiss pursuant to F.R.C.P. 12(b)(6) filed by MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 3, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo. (PARRILLA, AURORA) (Entered: 07/06/2010)
185 STIPULATION Extending Defendant Dicarolis's Time to Respond to the Third Amended Complaint and Extending Plaintiffs' Time to Respond to the Pending Motion to Dismiss by Defendants Hernandez and Spera by MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 3, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo. (WALKER, SCOTT) (Entered: 07/07/2010)
186 STIPULATION AND ORDER extending deft. Joseph DiCarolis's time to respond to the Third Amended Complaint and extending Pltfs' time to respond to the pending Motion to Dismiss by defts' Carmen Hernandez and Jason Spera. Signed by Magistrate Judge Esther Salas on 7/12/10. (dc, ) (Entered: 07/13/2010)
Update Answer Due Deadline as to deft. Joseph DiCarolis to 8/9/10. (dc, ) (Entered: 07/13/2010)
187 First MOTION for Judgment on the Pleadings by Joseph DiCarolis. Responses due by 8/2/2010 (RICHARDSON, ALLAN) (Entered: 07/17/2010)
Set Deadlines as to 187 First MOTION for Judgment on the Pleadings. Motion set for 8/16/2010 before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (dc, ) (Entered: 07/21/2010)

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08/06/2010

188 NOTICE of Appearance by EDWARD JOHN MARTIN on behalf of Agent 1, Agent 10, Agent 11, Agent 13, Agent 14, Agent 15, Agent 16, Agent 18, Agent 19, Agent 2, Agent 22, Agent 23, Agent 24, Agent 25, Agent 26, Agent 27, Agent 28, Agent 3, Agent 31, Agent 4, Agent 7, Agent 8 (MARTIN, EDWARD) (Entered: 08/06/2010)
189 ANSWER to Amended Complaint by Agent 7. (Attachments: # 1 Certificate of Service)(MARTIN, EDWARD) (Entered: 08/06/2010)
190 ANSWER to Amended Complaint by Agent 10. (Attachments: # 1 Certificate of Service)(MARTIN, EDWARD) (Entered: 08/06/2010)
191 ANSWER to Amended Complaint by Agent 13. (Attachments: # 1 Certificate of Service)(MARTIN, EDWARD) (Entered: 08/06/2010)
192 ANSWER to Amended Complaint by Agent 16. (Attachments: # 1 Certificate of Service)(MARTIN, EDWARD) (Entered: 08/06/2010)
193 ANSWER to Amended Complaint by Agent 18. (Attachments: # 1 Certificate of Service)(MARTIN, EDWARD) (Entered: 08/06/2010)
194 ANSWER to Amended Complaint by Agent 22. (Attachments: # 1 Certificate of Service)(MARTIN, EDWARD) (Entered: 08/06/2010)
195 ANSWER to Amended Complaint by Agent 31. (Attachments: # 1 Certificate of Service)(MARTIN, EDWARD) (Entered: 08/06/2010)
196 NOTICE of Appearance by SARAH ELISABETH WHITMAN on behalf of Agent 1, Agent 10, Agent 11, Agent 13, Agent 14, Agent 15, Agent 16, Agent 18, Agent 19, Agent 2, Agent 22, Agent 23, Agent 24, Agent 25, Agent 26, Agent 27, Agent 28, Agent 3, Agent 31, Agent 4, Agent 7, Agent 8 (WHITMAN, SARAH) (Entered: 08/06/2010)
197 ANSWER to Amended Complaint by Agent 19. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 08/06/2010)

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08/09/2010

198 ANSWER to Amended Complaint by Agent 8. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 08/06/2010)
199 ANSWER to Amended Complaint by Agent 25. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 08/06/2010)
200 NOTICE of Appearance by JESI J. CARLSON on behalf of Agent 1, Agent 10, Agent 11, Agent 13, Agent 14, Agent 15, Agent 16, Agent 18, Agent 19, Agent 2, Agent 22, Agent 23, Agent 24, Agent 25, Agent 26, Agent 27, Agent 28, Agent 3, Agent 31, Agent 4, Agent 7, Agent 8 (CARLSON, JESI) (Entered: 08/07/2010)
201 ANSWER to Amended Complaint by Agent 4. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 08/07/2010)
202 ANSWER to Amended Complaint by Agent 11. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 08/07/2010)
203 ANSWER to Amended Complaint by Agent 27. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 08/07/2010)
204 ANSWER to Amended Complaint by Agent 28. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 08/07/2010)
205 ANSWER to Amended Complaint by Agent 26. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 08/09/2010)
206 NOTICE of Appearance by ZACHARY CARL RICHTER on behalf of Agent 1, Agent 10, Agent 11, Agent 13, Agent 14, Agent 15, Agent 16, Agent 18, Agent 19, Agent 2, Agent 22, Agent 23, Agent 24, Agent 25, Agent 26, Agent 27, Agent 28, Agent 3, Agent 31, Agent 4, Agent 7, Agent 8 (RICHTER, ZACHARY) (Entered: 08/09/2010)
207 ANSWER to Amended Complaint by Agent 1. (Attachments: # 1 Certificate of Service)(RICHTER, ZACHARY) (Entered: 08/09/2010)

08/09/2010 08/09/2010 08/09/2010 08/09/2010 08/09/2010 08/09/2010 08/09/2010 08/09/2010 08/09/2010
08/09/2010

208 ANSWER to Amended Complaint by Agent 2. (Attachments: # 1 Certificate of Service)(RICHTER, ZACHARY) (Entered: 08/09/2010)
209 ANSWER to Amended Complaint by Agent 3. (Attachments: # 1 Certificate of Service)(RICHTER, ZACHARY) (Entered: 08/09/2010)
210 ANSWER to Amended Complaint by Agent 14. (Attachments: # 1 Certificate of Service)(RICHTER, ZACHARY) (Entered: 08/09/2010)
211 ANSWER to Amended Complaint by Agent 15. (Attachments: # 1 Certificate of Service)(RICHTER, ZACHARY) (Entered: 08/09/2010)
212 ANSWER to Amended Complaint by Agent 23. (Attachments: # 1 Certificate of Service)(RICHTER, ZACHARY) (Entered: 08/09/2010)
213 ANSWER to Amended Complaint by Agent 24. (Attachments: # 1 Certificate of Service)(RICHTER, ZACHARY) (Entered: 08/09/2010)
214 NOTICE of Appearance by JESI J. CARLSON on behalf of Agent 12, Agent 17, Agent 20, Agent 21, Agent 29, Agent 30, Agent 5, Agent 6 (CARLSON, JESI) (Entered: 08/09/2010)
215 NOTICE of Appearance by SARAH ELISABETH WHITMAN on behalf of Agent 12, Agent 17, Agent 20, Agent 21, Agent 29, Agent 30, Agent 5, Agent 6 (WHITMAN, SARAH) (Entered: 08/09/2010)
216 MOTION to Dismiss Third Amended Complaint by Agent 12, Agent 17, Agent 20, Agent 21, Agent 29, Agent 30, Agent 5, Agent 6. Responses due by 8/23/2010 (Attachments: # 1 Brief in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4Text of Proposed Order, # 5 Certificate of Service)(CARLSON, JESI) (Entered: 08/09/2010)
Set Deadlines as to 216 MOTION to Dismiss Third Amended Complaint. Motion set for 9/7/2010 before Judge Peter G. Sheridan. The motion will be decided on the papers. No appearances required unless notified by the court. (dc, ) (Entered: 08/11/2010)

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09/29/2010 09/29/2010 10/28/2010

217 Letter from Plaintiffs enclosing Proposed Stipulation and Order Extending Briefing Schedule for Motions to Dismiss. (Attachments: # 1 Text of Proposed Order Extending Briefing Schedule for Motions to Dismiss)(PARRILLA, AURORA) (Entered: 09/02/2010)
218 STIPULATION AND ORDER extending briefing schedule for motions to dismiss. Signed by Magistrate Judge Esther Salas on 9/9/10. (dc, ) (Entered: 09/13/2010)
219 Letter from Plaintiffs Enclosing Proposed Stipulation and Order Extending Briefing Schedule for Defendants ICE Agents 5, 6, 12, 17, 20, 21, 29, and 30's Motion to Dismiss. (Attachments: # 1 Text of Proposed Order Extending Briefing Schedule for Defendants ICE Agents 5, 6, 12, 17, 20, 21, 29, and 30's Motion to Dismiss)(PARRILLA, AURORA) (Entered: 09/22/2010)
220 BRIEF in Opposition re 181 MOTION to Dismiss pursuant to F.R.C.P. 12(b)(6), 187 First MOTION for Judgment on the Pleadings filed by CARLA ROE 3. (Attachments: # 1 Certification of Aurora F. Parrilla in Support of Plaintiff Yesica Guzman's Opposition to the Penns Grove Defendants' Motions to Dismiss the Third Amended Complaint, # 2 Exhibit A to Parrilla Certification, # 3 Exhibit B to Parrilla Certification, # 4 Exhibit C to Parrilla Certification, # 5Exhibit D to Parrilla Certification, # 6 Exhibit E to Parrilla Certification, # 7Exhibit F to Parrilla Certification, # 8 Exhibit G to Parrilla Certification, # 9Exhibit H to Parrilla Certification, # 10 Exhibit I to Parrilla Certification, # 11Exhibit J to Parrilla Certification, # 12 Exhibit K to Parrilla Certification, # 13Exhibit L to Parrilla Certification, # 14 Certificate of Service)(PARRILLA, AURORA) (Entered: 09/22/2010)
221 STIPULATION AND ORDER extending briefing schedule for deft. ICE Agents 5,6, 12,17,20,21,29 and 30's Motion to Dismiss Pltf's Third Amended Complaint. Signed by Magistrate Judge Esther Salas on 9/29/10. (dc, ) (Entered: 09/29/2010)
222 BRIEF in Opposition re 216 MOTION to Dismiss Third Amended Complaintfiled by CARLA ROE 3. (Attachments: # 1 Certificate of Service)(WALKER, SCOTT) (Entered: 09/29/2010)
223 ORDER Ordered that, the Court will decide both motions; any evidence concerning the defense of qualified immunity by pltfs. may be submitted by pltfs. or by the Penns Grove Police Officers. Signed by Judge Peter G. Sheridan on 10/28/10. (dc, ) (Entered: 10/29/2010)

10/29/2010 10/29/2010
10/29/2010
10/29/2010 10/29/2010
11/02/2010 11/03/2010 11/03/2010 11/03/2010 11/12/2010

224 AFFIDAVIT in Support re 187 First MOTION for Judgment on the Pleadings filed by Joseph DiCarolis. (RICHARDSON, ALLAN) (Entered: 10/29/2010)
225 Letter from Attorney Todd J. Gelfand on behalf of Defendant Officers Carmen Hernandez, Jason Spera, and Joseph DiCarolis enclosing additional documents and evidence to be considered by the Court when deciding Defendants' Motion for Summary Judgment. (GELFAND, TODD) (Entered: 10/29/2010)
226 REPLY to Response to Motion re 216 MOTION to Dismiss Third Amended Complaint filed by Agent 12, Agent 17, Agent 20, Agent 21, Agent 29, Agent 30, Agent 5, Agent 6. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 10/29/2010)
227 Letter from Scott L. Walker re 220 Brief in Opposition to Motion,,,. (Attachments: # 1 Affidavit Rule 56(f) Certification, # 2 Certificate of Service)(WALKER, SCOTT) (Entered: 10/29/2010)
228 MOTION to Continue to Offer Evidence in Response to Court's October 22, 2010 Order by CARLA ROE 3. (Attachments: # 1 Motion for Continuance, # 2Certification of Heather C. Bishop in Support of Motion, # 3 Text of Proposed Order, # 4 Certificate of Service, # 5 Cover Letter)(BISHOP, HEATHER) (Entered: 10/29/2010)
229 Letter from Counsel for Individual Federal Defendants Objecting to Plaintiff Guzman's Request to Lift the Stay re 227 Letter. (WHITMAN, SARAH) (Entered: 11/02/2010)
230 ORDER granting 228 Motion to Continue. Signed by Judge Peter G. Sheridan on 11/3/10. (dc, ) (Entered: 11/03/2010)
231 LETTER ORDER denying discovery, etc.,. Signed by Judge Peter G. Sheridan on 11/3/10. (dc, ) (Entered: 11/03/2010)
Set/Reset Hearings: Oral argument set for 11/4/2010 at 10:00 AM has been canceled in Trenton - Courtroom 7W before Judge Peter G. Sheridan. (dh, ) (Entered: 11/03/2010)
232 Letter from Scott Walker re 222 Brief in Opposition to Motion. (Attachments: # 1 Affidavit Affidavit of Yesica Segura (f/k/a Yesica Guzman))(WALKER, SCOTT) (Entered: 11/12/2010)

11/22/2010 11/29/2010 11/29/2010
12/14/2010 12/21/2010 01/06/2011
01/10/2011 01/11/2011 01/20/2011 02/03/2011

Set/Reset Hearings: Motion Hearing set for 11/29/2010 at 2:30 PM in Trenton - Courtroom 7W before Judge Peter G. Sheridan. (Penns Grove defendants Motion for Summary Judgment (converted motions to dismiss ECF 181 & 187)). (Please be prepared to argue the motion). (dh, ) (Entered: 11/22/2010)
233 ORDER granting 181 Motion to Dismiss; granting 187 Motion for Judgment on the Pleadings. Signed by Judge Peter G. Sheridan on 11/29/10. (dc, ) (Entered: 11/30/2010)
234 Minute Entry for proceedings held before Judge Peter G. Sheridan: Motion Hearing held on 11/29/2010 re 181 MOTION to Dismiss pursuant to F.R.C.P. 12(b)(6) filed by defendants Jason Spera, Carmen Hernandez, (Granted) 187First MOTION for Judgment on the Pleadings filed by defendants Joseph DiCarolis. (Granted) (Court Reporter/Recorder Frank Gable.) (dh, ) (Entered: 12/03/2010)
Set/Reset Hearings: Motion to Dismiss Third Complaint hearing set for 1/6/2011 at 11:00 AM in Trenton - Courtroom 7W before Judge Peter G. Sheridan. (Please be prepared to argue the motion). (dh, ) (Entered: 12/14/2010)
235 Letter from B.Azmy Re Supplemental Authority re 216 MOTION to Dismiss Third Amended Complaint. (Attachments: # 1 Exhibit Diaz-Bernal Decision)(AZMY, BAHER) (Entered: 12/21/2010)
239 Minute Entry for proceedings held before Judge Peter G. Sheridan: Motion Hearing held on 1/6/2011 re 216 MOTION to Dismiss Third Amended Complaint filed by Agent 12, Agent 5, Agent 30, Agent 29, Agent 20, Agent 17, Agent 21, Agent 6. (Decision Reserved) (Court Reporter/Recorder Frank Gable.) (dh, ) (Entered: 02/02/2011)
236 Letter from Jesi J. Carlson on behalf of Agents 5, 6, 12, 17, 20, 21, 29 and 30 re 216 MOTION to Dismiss Third Amended Complaint. (CARLSON, JESI) (Entered: 01/10/2011)
237 Letter from Baher Azmy re 216 MOTION to Dismiss Third Amended Complaint, 236 Letter. (AZMY, BAHER) (Entered: 01/11/2011)
238 Letter from Counsel for Defendants Myers, Torres, Weber and Rodriguez. (WHITMAN, SARAH) (Entered: 01/20/2011)
240 Letter from Baher Azmy re Discovery Stay. (Attachments: # 1 Exhibit)(AZMY, BAHER) (Entered: 02/03/2011)

02/03/2011 02/09/2011
02/16/2011 02/16/2011 02/16/2011 02/16/2011 02/16/2011 02/16/2011 02/16/2011 02/16/2011

241 ORDER granting in part and denying in part 216 Motion to Dismiss. Signed by Judge Peter G. Sheridan on 2/3/11. (dc, ) (Entered: 02/07/2011)
242 Transcript of Proceedings held on 1/6/11, before Judge Sheridan. Court Reporter/Transcriber Francis J. Gable, Telephone number 856 889 4761. Tape Number: Motion to Dismiss. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. Redaction Request due 3/2/2011. Redacted Transcript Deadline set for 3/14/2011. Release of Transcript Restriction set for 5/10/2011. (tjg, ) (Entered: 02/09/2011)
243 ANSWER to Amended Complaint by Agent 5. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/16/2011)
244 ANSWER to Amended Complaint by Agent 6. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/16/2011)
245 ANSWER to Amended Complaint by Agent 12. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/16/2011)
246 ANSWER to Amended Complaint by Agent 21. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/16/2011)
247 ANSWER to Amended Complaint by Agent 30. (Attachments: # 1 Certificate of Service)(WHITMAN, SARAH) (Entered: 02/16/2011)
248 ANSWER to Amended Complaint by Agent 17. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 02/16/2011)
249 ANSWER to Amended Complaint by Agent 20. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 02/16/2011)
250 ANSWER to Amended Complaint by Agent 29. (Attachments: # 1 Certificate of Service)(CARLSON, JESI) (Entered: 02/16/2011)

02/17/2011 02/28/2011 03/22/2011 03/23/2011
03/28/2011 04/01/2011 04/13/2011
04/15/2011 05/12/2011

251 COURT'S LETTER to all counsel of record from Judge Peter G. Sheridan re discovery issues, etc., (dc, ) (Entered: 02/23/2011)
252 LETTER ORDER scheduling a telephone status conference for 3/22/2011 at 4:00 PM before Magistrate Judge Esther Salas, etc., Signed by Magistrate Judge Esther Salas on 2/28/11. (dc, ) (Entered: 02/28/2011)
Minute Entry for proceedings held before Magistrate Judge Esther Salas: Telephone Conference held on 3/22/2011. (ps, ) (Entered: 03/22/2011)
253 ORDER, (The Initial Conference has been set for 4/15/2011 at 10:30 AM in Newark - Courtroom 2D before Magistrate Judge Esther Salas.) A JOINT DISCOVERY PLAN MUST BE SUBMITTED 7 DAYS PRIOR TO THE CONFERENCE. CM/ECF IS MANDATORY FOR ALL FILINGS. Should you have any questions please call (973) 297-4887. Signed by Magistrate Judge Esther Salas on 3/23/2011. (ps, ) (Entered: 03/23/2011)
254 Letter from Defendant ICE Agents 1-8, 10-31 Enclosing Stipulation. (Attachments: # 1 Stipulation)(WHITMAN, SARAH) (Entered: 03/28/2011)
255 STIPULATION AND ORDER Ordered that ICE Agent Defts. 1-8 and 10-31 shall submit their initial disclosures purs. to Fed. R. Civ. P. 26(a)(1) no later than 4/18/11, etc., Signed by Magistrate Judge Esther Salas on 4/1/11. (dc, ) (Entered: 04/04/2011)
256 NOTICE of Appearance by CATHERINE WEISS on behalf of MARIA ARGUETA, BYBYANA ARIAS, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo (WEISS, CATHERINE) (Entered: 04/13/2011)
Minute Entry for proceedings held before Magistrate Judge Esther Salas: Telephone Conference held on 4/15/2011. (ps, ) (Entered: 04/19/2011)
257 AFFIDAVIT/Certification in support of discovery confidentiality order of Melanie S. Keiper by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"). (Attachments: # 1 Text of Proposed Order Discovery Confidentiality Order)(KEIPER, MELANIE) (Entered: 05/12/2011)

05/16/2011 06/14/2011 06/23/2011 06/24/2011 06/24/2011 07/08/2011 07/21/2011
07/25/2011 07/28/2011 07/28/2011

258 DISCOVERY CONFIDENTIALITY ORDER. Signed by Magistrate Judge Esther Salas on 5/16/11. (dc, ) (Entered: 05/18/2011)
259 USCA JUDGMENT as to 139 Notice of Appeal (USCA), Notice of Appeal (USCA) filed by SCOTT WEBER, JOHN P. TORRES, JULIE L. MYERS, BARTOLOME RODRIGUEZ (ca3jk, ) (Entered: 06/14/2011)
260 Letter from Counsel for Individual Federal Defendants Julie Myers, John Torres, Scott Weber and Bart Rodriguez. (Attachments: # 1 Exhibit)(MARTIN, EDWARD) (Entered: 06/23/2011)
Magistrate Judge Douglas E. Arpert added. Magistrate Judge E Salas no longer assigned to case. (mmh) (Entered: 06/24/2011)
261 ORDER of Reallocation; the action is reallocated from Newark to Trenton. Signed by Chief Judge Garrett E. Brown, Jr on 6/24/2011. (mmh) (Entered: 06/24/2011)
Set/Reset Hearings: Telephone Status Conference set for 8/3/2011 03:30 PM before Magistrate Judge Douglas E. Arpert. It shall be Defendant's responsibility to set up and initiate call. Kindly mark your calendars accordingly. (ce3) (Entered: 07/08/2011)
262 NOTICE of Voluntary Dismissal by MARIA ARGUETA, BYBYANA ARIAS, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo (PARRILLA, AURORA) (Entered: 07/21/2011)
263 NOTICE AND ORDER of Dismissal of Action against Agent 9. Signed by Judge Peter G. Sheridan on 7/25/2011. (mmh) (Entered: 07/25/2011)
264 MANDATE of USCA as to 139 Notice of Appeal (USCA), Notice of Appeal (USCA) filed by SCOTT WEBER, JOHN P. TORRES, JULIE L. MYERS, BARTOLOME RODRIGUEZ (Attachments: # 1 Opinion, # 2 Letter)(ca3hicks, ) (Entered: 07/28/2011)
Pursuant to the 264 Mandate of the USCA, the judgment of the District Courtentered on January 28, 2010 is reversed and the matter is remanded for further proceedings. (mmh) (Entered: 07/28/2011)

07/28/2011 08/03/2011 08/08/2011
08/11/2011 08/18/2011
08/19/2011 08/25/2011 08/25/2011

Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling filed on 7/28/2011. In the event that the mandate or judgment provides for costs or directs a disposition other than an affirmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (mmh) (Entered: 07/28/2011)
Minute Entry for proceedings held before Magistrate Judge Douglas E. Arpert: Telephone Conference held on 8/3/2011. (Court Reporter/Recorder not recorded.) (eh, ) (Entered: 08/11/2011)
265 TEXT ORDER- Notice of Hearing: Settlement Conference set for 9/14/2011 10:00 AM in Trenton - Courtroom 6W before Magistrate Judge Douglas E. Arpert. Trial counsel and client representives with full settlement authority must attend this conference. Counsel to submit confidential settlement memoranda to chambers (not to exceed 4 pages)48 hours prior to the conference. (Please do not e-file) (kak ) Modified on 8/8/2011 (kak). Modified on 8/8/2011 (kak). (Entered: 08/08/2011)
266 Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney GJON JUNCAJ terminated. (PRAIRIE, NICOLE) (Entered: 08/11/2011)
267 MOTION for Leave to Appear Pro Hac Vice by MARIA ARGUETA, BYBYANA ARIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo. (Attachments: # 1 Certification of Aurora F. Parrilla in Support of Application for Pro Hac Vice Admission of Barbara Moses, # 2 Certification of Barbara Moses in Support of Application for Pro Hac Vice Admission, # 3 Text of Proposed Order)(PARRILLA, AURORA) (Entered: 08/18/2011)
268 ORDER granting 267 Motion for Leave to Appear Pro Hac Vice as to Barbara Moses, Esq. on behalf of Pltfs. Signed by Magistrate Judge Douglas E. Arpert on 8/19/2011. (gxh) (Entered: 08/19/2011)
269 Letter from Scott L. Walker, Esq. on behalf of Plaintiffs to the Honorable Douglas E. Arpert, U.S.M.J.. (BISHOP, HEATHER) (Entered: 08/25/2011)
270 NOTICE of Appearance by REYNOLD LAMBERT on behalf of All Plaintiffs (LAMBERT, REYNOLD) (Entered: 08/25/2011)

08/26/2011 08/26/2011 08/31/2011 08/31/2011 09/02/2011
09/07/2011
09/14/2011 06/04/2012
06/04/2012
06/05/2012

Pro Hac Vice fee received for Barbara Moses, Esq.: $150, receipt number TRE013758. (gxh) (Entered: 08/26/2011)
271 Letter from Edward J. Martin on behalf of the individual federal defendants re 269 Letter. (MARTIN, EDWARD) (Entered: 08/26/2011)
272 Notice of Request by Pro Hac Vice Barbara Moses to receive Notices of Electronic Filings. (PARRILLA, AURORA) (Entered: 08/31/2011)
273 NOTICE of Appearance by MEGAN E. HIORTH on behalf of All Plaintiffs (HIORTH, MEGAN) (Entered: 08/31/2011)
274 STIPULATION of Dismissal by MARIA ARGUETA, BYBYANA ARIAS, CARLA ROE 3, VERONICA COVIAS, Walter Chavez, ARTURO FLORES, Ana Galindo, JUAN ONTANEDA, W.C., by and through his parents Walter Chavez and Ana Galindo. (BISHOP, HEATHER) (Entered: 09/02/2011)
275 STIPULATION AND ORDER that the claims asserted by Pltf Veronica Tobias, incorrectly pled as Veronica Covias, are hereby dismissed without prejudice; that Pltf Veronica Covias and Deft ICE Agents 10, 24, and 31 are hereby dismissed from this action without prejudice. Signed by Judge Peter G. Sheridan on 9/6/2011. (gxh) (Entered: 09/07/2011)
Text Minute Entry for proceedings held before Magistrate Judge Douglas E. Arpert: Settlement Conference held on 9/14/2011. (ce3) (Entered: 09/15/2011)
Notice to the Parties: Counsel: This matter was stayed on May 18, 2010 due to an appeal having been filed. Since the appeal has been resolved, is there any reason why that the stay should not be vacated? Please respond briefly by submitting a letter on the docket by June 11, 2012. Peter G. Sheridan, U.S.D.J. (Entered: 06/04/2012)
Set/Reset Hearings: Telephone Status Conference set for 6/11/2012 02:30 PM before Magistrate Judge Douglas E. Arpert. It shall be Plaintiffs responsibility to set up and initiate the call. Kindly mark your calendars accordingly. (ce3) (Entered: 06/04/2012)
276 Letter from All Parties in Response to June 4, 2012 Order. (WHITMAN, SARAH) (Entered: 06/05/2012)

06/11/2012 06/12/2012
07/05/2012
07/30/2012 08/01/2012
09/21/2012 09/21/2012 11/09/2012 11/13/2012

Text Minute Entry for proceedings held before Magistrate Judge Douglas E. Arpert: Telephone Conference held on 6/11/2012. (ce3) (Entered: 06/12/2012)
277 Substitution of Attorney - Attorney MELANIE SUZANNE KEIPER and NICOLE ROGERS PRAIRIE terminated. Attorney CHRISTOPHER WAYNE HOLLIS for UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) added.. (KEIPER, MELANIE) (Entered: 06/12/2012)
278 ORDER denying ICE Agent Defts' application to limit discovery; denying the United States Defts' application to limit discovery; denying without prejudice Defts' application to maintain the confidentiality of the identities of the ICE Agents; setting a Status Conference for 7/23/2012 at 3:00 PM before Magistrate Judge Douglas E. Arpert. Signed by Magistrate Judge Douglas E. Arpert on 7/5/2012. (gxh) (Entered: 07/05/2012)
279 Letter from individual federal defendants Myers, Torres, Weber and Rodriguez re Mandate Notice,. (Attachments: # 1 Text of Proposed Order)(MARTIN, EDWARD) (Entered: 07/30/2012)
280 ORDER ON THE MANDATE. Pursuant to L. Civ. R. 79.4, JULIE MYERS, JOHN TORRES, SCOTT WEBER and BARTOLOME RODRIGUEZ are dismissed from this case. Signed by Judge Peter G. Sheridan on 8/1/2012. (mmh) (Entered: 08/01/2012)
281 ORDER dismissing case with prejudice as settled. Signed by Judge Peter G. Sheridan on 9/21/2012. (gxh) (Entered: 09/21/2012)
***Civil Case Terminated. (gxh) (Entered: 09/21/2012)
282 Letter from plaintiffs requesting extension. (LAMBERT, REYNOLD) (Entered: 11/09/2012)
283 LETTER ORDER that the Order dismissing the matter (Docket Entry No. 281 ) which allows for re-opening within 60 days is extended to 90 days. Signed by Judge Peter G. Sheridan on 11/13/2012. (gxh) (Entered: 11/13/2012)

 
 PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 10-1479
MARIA ARGUETA; WALTER CHAVEZ; ANA GALINDO; W.C., by and through his parents Walter Chavez and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS;
JUAN ONTANEDA; VERONICA COVIAS; YESICA GUZMAN
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE");
JULIE L. MYERS, Assistant Secretary for Immigration and Customs Enforcement; JOHN P. TORRES, Deputy Assistant
Director for Operations, Immigration and Customs Enforcement; SCOTT WEBER, Director, Office of Detention
and Removal Operations, Newark Field Office; BARTOLOME RODRIGUEZ, Former Director, Office of
Detention and Removal Operations, Newark Field Office; JOHN DOE ICE AGENTS 1-60; JOHN SOE ICE SUPERVISORS 1-30;
JOHN LOE PENNS GROVE OFFICERS 1-10
Julie L. Meyers, Bartolome Rodriguez John P. Torres, Scott Weber, Appellants

On Appeal from the United States District Court for the District ofNew Jersey
(D.C. Civil No. 2-08-cv-01652-001) District Judge: Hon. Peter G. Sheridan
Argued April 14, 2011
BEFORE: FISHER, JORDAN, and COWEN, Circuit Judges
(Filed: June 14, 20ll)
Gjon Juncaj, Esq. Melanie Keiper, Esq. Nicole Prairie, Esq. United States Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20001
Edward J. Martin, Esq. Sarah Elisabeth Whitman, Esq. United States Department of Justice Torts Branch, Civil Division P.O. Box 7146 Ben Franklin Station Washington, DC 20044
2

Howard S. Scher, Esq. (Argued) United States Department of Justice Civil Division Room 7239 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Counsel for Appellants
Baber A. Azmy, Esq. (Argued) Seton Hall Law School 833 McCarter Highway Newark, NJ 07102
Heather Colleen Bishop, Esq. Natalie J. Kraner, Esq. Aurora Franceca Parrilla, Esq. David Marshall Reiner, Esq. R. Scott Thompson, Esq. Scott L. Walker, Esq. Catherine Weiss, Esq. Kenneth H. Zimmerman, Esq. Lowenstein Sandler 6t Livingston Avenue Roseland, NJ 07068
Counsel for Appellees
Claire Prestel, Esq. Public Justice 1825 K Street, N.W. Suite 200 Washington, DC 20006
3

Counsel for Public Justice; Prisoners' Rights Project of the Legal
Aid Society of the City ofNew York; Pennsylvania Institutional Law Project, Amicus Appellees
Lawrence S. Lustberg, Esq. Gibbons One Gateway Center Newark, NJ 07102-5310
Counsel for LatinoJustice PRLDEF; American Civil Liberties Union of New Jersey; Asian American Legal Defense and
Education Fund; Catholic Charities of the Archdiocese of Newark, Amicus Appellees
OPINION
COWEN, Circuit Judge.
Defendants Julie L. Myers, John P. Torres, Scott Weber, and Bartolome Rodriguez ("Appellants") appeal from the orders of the United States District Court for the District of New Jersey denying their motions to dismiss on qualified immunity and personal jurisdiction grounds. This Bivens action arises out of (in the words of the Plaintiffs' Second Amended Complaint) an alleged "practice of unlawful and
4

abusive raids of immigrant homes across the state of New Jersey" conducted by Immigration and Customs Enforcement ("ICE") agents under a nation-wide program instituted by the Department of Homeland Security ("DHS") known as "Operation Return to Sender." (JA530.) The nine named Plaintiffs in this action were the alleged victims of a number of raids executed in New Jersey. On the other hand, Appellants are or were high-ranking federal officials, and they contend., inter alia, that the individual capacity claims for damages against them must be dismissed pursuant to the qualified immunity doctrine and the Supreme Court's ruling in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
We conclude that Plaintiffs failed to allege a plausible Bivens claim against these four officials. We will reverse the District Court's denial of qualified immunity (and therefore need not-and do not-consider whether we have pendent appellate jurisdiction over Appellants' appeal from the District Court's personal jurisdiction ruling or whether the District Court committed reversible error by denying the motion to dismiss on personal jurisdiction grounds).
I.
A. The Allegations
We begin with the allegations in Plaintiffs' lengthy Second Amended Complaint. The Plaintiffs named in the Second Amended Complaint resided in New Jersey, are of Latino origin, and were allegedly subjected to unlawful and abusive raids conducted under Operation Return to Sender
5

sometime between August 2006 and April 2008. 1 In addition to a number of as yet unknown ICE agents and local police officers from Penns Grove, New Jersey (who allegedly participated in the August 1, 2006 raid of Guzman's house and were the targets of several claims under 42 U.S.C. § 1983 and the New Jersey Constitution), they named as Defendants: (1) ICE; (2) Myers, who "is, and was at all relevant times, the Assistant Secretary for Homeland Security for Immigration and Customs Enforcement, located in Washington D.C." (JA534); (3) Torres, who "is Deputy Assistant Secretary for Operations for ICE, and was at all relevant times, the Director (or Acting Director) of the ICE Office of Detention and Removal Operations ('DRO') in Washington D.C." (id.); (4) Weber, the Director of the DRO Field Office in Newark, New Jersey; and (5) Rodriguez, the former Acting Field Director
The nine Plaintiffs named in the Second Amended Complaint were (in alphabetical order): (1) Maria Argueta, who held lawful temporary protection status; (2) Bybyana Arias, an American citizen; (3) Walter Chavez, a lawful permanent resident; (4) Veronica Covias, a lawful permanent resident; (5) Arturo Flores, an American citizen; (6) Ana Galindo, a lawful permanent resident; (7) Yesica Guzman, a lawful permanent resident; (8) Juan Ontaneda; and (9) W.C., the minor child of Chavez and Galindo and an American citizen.
The raids allegedly took place on or about the following dates (in chronological order): (1) August 2006 (Guzman); (2) November 13, 2006 (Flores and Arias); (3) March 26, 2007 (Covias); (4) December 7, 2007 (Ontaneda); (5) January 29, 2008 (Argueta); and (6) April 2, 2008 (Chavez, Galindo, and W.C.).
6

of the Newark DRO Field Office. Appellants (as well as the unknown ICE agents) were specifically named in both their individual and official capacities.
Myers was responsible for implementing the Immigration and Nationality Act and administering ICE. "ICE press releases describing arrests in New Jersey under Operation Return to Sender have repeatedly stated that those arrests were made pursuant to the nationwide immigration enforcement strategy announced by defendant Myers and Michael Chertoff, Secretary of the Department of Homeland Security." (JA534.) In turn, DRO is the ICE branch responsible for coordinating "the removal of foreign nationals not entitled to remain in the country." (Id.) As DRO Director, Torres oversaw the apprehension, detention, and removal of foreign nationals charged with violating federal immigration law, and he supervised law enforcement officers assigned to DRO field offices and, in particular, "Fugitive Operations Teams" ("FOTs"). (JA535.) Weber and Rodriguez were responsible for managing ICE enforcement activities in New Jersey, including the implementation of Operation Return to Sender.
Plaintiffs devoted much of their pleading to an extensive discussion of this implementation. Since 2002, DRO has overseen the National Fugitive Operation Program. This program was established to arrest and remove "so-called immigration 'fugitives,'" dermed by ICE as either individuals with outstanding deportation orders or persons who failed to report to a DRO officer after receiving notice to do so. (JA537.) As part of increased enforcement efforts (which allegedly included doubling the number of New Jersey FOTs from two to four), each and every FOT in the nation was
7

allegedly ordered to arrest 1,000 fugitive aliens per year. According to the Second Amended Complaint, "[t]his quota represented an 800% increase on the previous quota of 125 arrests per year, mandated just two years earlier." (JA538.) ICE officially commenced Operation Return to Sender on May 26, 2006, with the program purportedly directed at apprehending fugitive aliens and especially aliens with criminal records.
The number of individuals arrested by FOTs increased as a result of these changes. For instance, New Jersey FOT arrest numbers went from 1,094 in FY 2006 to 2,079 in FY 2007. Plaintiffs specifically alleged that, despite the supposed purposes of the operation itself, "[t]he majority of individuals arrested in New Jersey under Operation Return to Sender ... are neither criminals nor fugitives." (JA542.) Accordingly, 87% of the individuals arrested in New Jersey in FY 2007 evidently had no criminal history, and ICE statistics indicated that as few as one in three individuals arrested in New Jersey was actually a fugitive alien. "The remaining individuals arrested were a mix of undocumented immigrants and, upon information and belief, United States citizens, permanent residents and visa-holders who have never had any court order, warrant, or criminal conviction against them." (Id.) ICE referred to these persons as "collateral arrests," even though this "euphemism" allegedly "obfuscated" the reality that its enforcement activities often served as rretexts for sweeping up large numbers of immigrants. (Id.) According to a 2007 report from the DRS
2 We note that a September 29, 2006 memorandum from Torres, obtained by Plaintiffs after the filing of the initial complaint, stated that "collateral" arrests could be counted
8

Inspector General, the database used to locate fugitive aliens "is outdated and inaccurate in up to 50% of cases." (JA53l.) The report further stated that DRO began hiring "lower-level, less experienced officers for fugitive operations" in 2006 and that "some fugitive operations agents have not completed the Fugitive Operations Training Program-2004 guidelines allow the agents to work for up to two years before receiving necessary training." (JA544 (citing JA242-JA311).) ICE's enforcement activities were also the subject of a February 13, 2008 hearing before the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. At this hearing, an ICE representative allegedly acknowledged that American citizens were detained and even deported, and the chair remarked that we "had reached an era 'where an overzealous government is interrogating, detaining and deporting its own citizens while treating non-citizens even worse. ,,, (JAS43.)
Plaintiffs explained that the "practice" of unlawful and abusive raids flourished as a predictable consequence of the "arbitrary" and "exponentially-increased" quotas. (JA530.) "Under pressure from these quotas immigration agents have regularly disregarded the obligation to secure a judicial warrant or probable cause in carrying out unlawful entries and dragnet searches of homes in which the agents only loosely suspect immigrant families may reside." (Id.) Plaintiffs alleged that their own personal experiences (also described in some detail in their pleading) "are typical of the 'Operation Return to Sender' home raid modus operandi throughout the state and the nation, which has been comprehensively
towards the alleged quota in certain circumstances.
9

documented through media reports and fIrst-hand accounts from other victims." (JA531.)
SpecifIcally, the raids allegedly violated the Fourth and Fifth Amendments to the United States Constitution. Due to the flaws in the database and other defIciencies, the unconstitutional conduct allegedly began even before the team of ICE agents arrived at a particular residence. In other words, "[a]gents regularly raid homes where the purported 'fugitive' target is not present and could not be present." (JA531.) It is uncontested that the agents must obtain consent in order to enter a person's home. According to Plaintiffs, the agents typically failed to obtain the requisite consent.3 The
3 Among other things, Plaintiffs alleged that: (1) a home raid typically occurred in the pre-dawn hours of the morning, with multiple ICE agents surrounding a home believed to house one or more immigrant families and pounding furiously on the door and windows; (2) the agents used a variety of frequently deceptive and even coercive tactics to get an occupant to open the door, including (a) falsely identifying themselves as police offIcers (when they were actually administrative offIcers authorized to enforce federal inunigration laws but usually lacking general police powers), (b) enlisting the aid of local police offIcers to deceive the occupant as to their identities (with such misrepresentations taking on special importance in New Jersey because state offIcials encouraged immigrant populations to assist local police without fear of immigration consequences), or (c) simply storming into the home once the occupant opened the door believing there was an emergency (and sometimes even physically breaking down the door); (3) some agents treated the raids as a "perverse sport," as illustrated by an April 30,
10

pattern of unconstitutional conduct then allegedly continued once the ICE agents actually entered the home.4 Plaintiffs claimed that this whole process was then repeated at other homes until the agents' van was filled. According to
2007 e-mail from a Connecticut ICE agent to a state police trooper inviting the state troopers to an upcoming raid in New Haven, promising a "'fun time,'" and asking if any of '''you guys can play'" (JA539 (quoting JA236)); and (4) for many agents, deceit and dishonesty became a regular part of the raids, as demonstrated by a reported incident from Freehold, New Jersey, in which the ICE team leader, after the occupants refused to open the door, asked to have a marked police vehicle pull up to the house and a uniformed police officer knock on the door, with ICE then "tak[ing] over the investigation'" (JA540 (quoting JA240)).
4 Plaintiffs specifically claimed, among other things, that: (1) multiple ICE agents typically entered and quickly swept through the home, displaying or brandishing firearms and even occasionally pointing their weapons at the occupants who often were partially undressed or sitting terrified in their night clothes; (2) they then usually ordered all of the occupants to a central location in the home and then interrogated them about their identities and immigration statuses despite the lack of any reasonable basis for believing they were not citizens and the fact that the purported target of the raid was frequently unknown to the occupants themselves; (3) the agents, in front of children and other family members, handcuffed individuals they suspected were unlawfully present in this country and marched them into a waiting van; and (4) in some raids, the ICE agents were verbally and even physically abusive.
11

Plaintiffs, the agents' actions had an especially devastating impact on children (most of them citizens), who had to watch "law enforcement agents sweeping through their homes with guns, ordering them and their parents to gather together and suddenly handcuffing and dragging away their parents in the middle ofthe night." (JA541.)
With respect to Appellants, Plaintiffs asserted that, "[d]espite aggressively increasing the arrest quotas and the number of agents participating in 'Operation Return to Sender,' and thereafter being notified-via press reports, lawsuits, and congressional testimony---of the widespread allegations of unconstitutional and abusive conduct by ICE agents as part of this program, the DRS supervisory officials named in this Complaint have continued to foster an institutional culture of lawlessness." (JA531-JA532.) In short, these supervisory officials allegedly failed to develop meaningful guidelines or oversight mechanisms to ensure that home searches were conducted in a constitutional fashion, to furnish their agents with adequate training (and, in the case of some newer agents, any training whatsoever) on the lawful execution of lawful operations, and to provide some sort of basic accountability for violations of the Constitution. Appellants instead "have proudly publicized the increasing numbers of arrests made as a result of the unconstitutional raids that continue to be carried out in the shadows and in the dark of night." (JA532.) Plaintiffs sought to hold accountable "those who conducted, directed, and sanctioned the complained-of conduct." (ld.)
According to Plaintiffs, the "nationwide pattern and practice" of unconstitutional conduct described above "has been the subject of widespread media reporting as well as
12

multiple lawsuits filed in other federal district courts." (JA559.) Plaintiffs cited to five lawsuits, all from outside this Circuit. (Id. (citing Barrera v. Boughton, No. 07-cv-1436 (D. Conn. Sept. 26, 2007); Aguilar v. ICE, No. 07-cv-8224 (S.D.N.Y. Sept. 20, 2007); Flores-Morales v. George, No. 07cv-0050 (M.D. Tenn. July 5, 2007); Reyes v. Alcamtar, No. 07-cv-2271 (N.D. Cal. Apr. 26, 2007); Mancha v. ICE, No. 06-cv-2650 (N.D. Ga. Nov. 1,2006».) Members of Congress also allegedly raised questions about the raids. In a letter dated June 11, 2007, three legislators expressed their concerns about reports of misconduct occurring during raids executed in New Haven, Connecticut, on June 6, 2007 (i.e., ICE agents pushing their way into homes without search warrants, inappropriately treating both adults and children, and ultimately catching only four fugitives out of the thirtyone arrested). The raids were also allegedly criticized in a March 5, 2008 report by the United Nations Special Rapporteur on the Human Rights of Migrants. Plaintiffs alleged that reports of raids-and related misconduct-were especially prevalent in New Jersey, and they specifically cited to a number of newspaper articles purportedly describing incidents of misconduct dating from May 2006 to February 2008.
Plaintiffs included a whole section in their Second Amended Complaint entitled "Defendants' Supervisory Responsibility." (JA561 (emphasis omitted).) In this section, they again attempted to explain in more detail the four Appellants' alleged involvement in the unconstitutional conduct described above.
Accordingly, Plaintiffs made the following specific allegations with respect to Myers and Torres: (1) these two
13

Appellants oversaw the implementation of a five-fold increase in the number of FOTs between 2005 and 2007 and approved a "remarkable" 800% increase in the arrest quota for each team without providing the necessary training to prevent ICE agents, who now faced new pressures from the drastically increased quota, from acting abusively and unlawfully (id.); (2) Myers and Torres "facilitated the creation of a culture of lawlessness and lack of accountability within an agency they supervise" (id.); (3) in recent years, they "have been repeatedly on notice of the routine unconstitutional home-raid practices by ICE agents throughout the country," specifically because "defendants Myers and Torres have been sued numerous times for their roles in these practices" (id. (citing Aguilar (Myers and Torres); Flores-Morales (Myers); Mancha (Myers and Torres)); (4) the National Immigration Forum sent a letter on June 11, 2007 to Chertoff questioning the conduct of ICE agents in the June 2007 New Haven raids; (5) Myers herself responded to the National Immigration Forum correspondence in a letter dated July 6, 2007, in which she acknowledged that only five of the twenty-nine individuals arrested in New Haven were fugitive aliens, agents routinely lacked judicially-issued warrants and thereby had to obtain voluntary and knowing consent before entry, and (as emphasized by Plaintiffs) "such consent was ensured simply by assigning a Spanish-speaking officer to each Fugitive Operations Team" (JA562); (6) Torres possessed "direct responsibility for the execution of fugitive operations" and, like Myers, he was made aware of the unconstitutional home raid practices of his subordinates through the media and lawsuits filed against him dating back to November 2006; (7) also like Myers, Torres received specific notice of the misconduct in New Haven by means of a June 2007
14

telephone call from the city's own mayor claiming that ICE agents "'barged into houses without warrants and verbally abused the people and children were manhandled'" and asking whether "Torres's office should continue to allow such home raids to be conducted with these allegations pending" (id. (quoting JA317)); (8) despite their awareness of the unconstitutional home raid practices through lawsuits, Congressional inquiries, national media reports, and other sources, Myers and Torres repeatedly failed to conduct any meaningful investigations or provide any specific guidelines or training to ensure that such raids satisfied constitutional requirements and also, upon information and belief, failed to discipline any responsible agents in a meaningful fashion; and (9) on the contrary, Myers and Torres, "have contributed to such unlawful conduct by continuing to publicize, and laud as 'successful,' their department's dramatic increase in immigration arrests over the past two years" in several press releases, and their behavior further confirmed ''that the high number of arrests were made pursuant to the nationwide interior immigration enforcement strategy announced by defendant Myers and Secretary Chertoff' (JA563 (citations omitted)).5
5 Plaintiffs also submitted to the District Court a June 13, 2008 newspaper article stating that New Jersey Senator Robert Menendez had raised serious concerns about overzealous and biased enforcement actions, including raids executed in New Jersey, in a meeting with Chertoff and Myers in May 2008. However, both officials purportedly disregarded his criticism and were "'in total denial. '" (JA44 1.)
15

Plaintiffs advanced a similar set of allegations with respect to Weber and Rodriguez: (1) as Newark DRO Field Office Directors, the two men were directly responsible for overseeing fugitive operations and the execution of Operation Return to Sender in New Jersey, and they both made frequent reports and public comments regarding the number of arrests and related matters; (2) "[c]omments to the media by each of them regarding allegations of inappropriate action by their fugitive operations personnel, including unconstitutional home raids, suggest that defendants Rodriguez and Weber at best acquiesced, and at worst, encouraged such behavior" (id.); (3) for example, when Weber was confronted by the press with specific allegations regarding a pattern of raids conducted without search warrants or consent, he was quoted in a newspaper article as saying that "'I don't see it as storming a home .... We see it as trying to locate someone'" (JA564 (quoting Elizabeth Llorente, Immigration Officials Say Raids On lllegais Are Within The Law, The Record (Hackensack, N.J.), Jan. 2, 2008)); and (4) upon information and belief, Weber and Rodriguez (a) knew that ICE agents were entering and searching New Jersey homes without search warrants and without the requisite consent, (b) failed to implement any guidelines, protocols, training, oversight, or record-keeping requirements to ensure that agents acted within constitutional limitations, (c) failed to conduct any substantial investigations into allegations of unconstitutional home raids of which they were made aware or otherwise discipline any responsible agent in a meaningful fashion, and (d) instead simply continued to publicize the "'successful'" increase in arrests in New Jersey over the past two years "while allowing the unconstitutional means for many of the arrests to continue unchecked" (id.).
16

We come to the actual causes of action asserted by Plaintiffs. In total, the Second Amended Complaint contained sixteen separate claims. The various federal Defendants, however, were only named in the first six claims. In particular, these six Bivens claims were: (1) a claim by all Plaintiffs for unreasonable home entries in violation of the Fourth Amendment; (2) a claim by all Plaintiffs for unreasonable home searches in violation of the Fourth Amendment; (3) a claim by all Plaintiffs for unreasonable seizures in violation of the Fourth Amendment; (4) a Fourth Amendment claim for excessive force by Chavez, Galindo, W.C., and Guzman; (5) a Fifth Amendment substantive due process claim by Chavez, Galindo, W.C., and Guzman; and (6) a Fifth Amendment equal protection claim by Ontaneda against all federal Defendants with the sole exception ofICE.
Each of these six Bivens claims contained an equivalent allegation specifically addressing the Appellants' alleged personal liability. The first claim, for instance, stated the following: "Upon information and belief, defendants Myers, Torres, Weber, and Rodriguez also participated in, directed, or knew of and acquiesced in the violation of plaintiffs' rights; tolerated past or ongoing misbehavior of this kind; or were deliberately indifferent to the risk that ICE officers, lacking clear training and under the pressure of sharply-increased quotas, would violate the Fourth Amendment rights of individuals suspected of being undocumented immigrants to the United States." (JA565.)
Finally, Plaintiffs sought relief in the form of compensatory, consequential, and punitive damages, attorney's fees, and an injunction against "all further intimidation of plaintiffs Walter Chavez, Ana Galindo, and
17

W.C., and any and all entry into the home of plaintiffs Walter Chavez, Ana Galindo, and W.C. absent a warrant issued by a judicial officer or informed, voluntary consent by either plaintiff Chavez or plaintiff Galindo." (JA5Sl.)
B. Procedural History and the District Court's Rulings
Plaintiffs filed their original Complaint on April 3, 200S, and they then filed an amended pleading on May 22, 200S. The federal Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). On May 7, 2009, the District Court, for the most part, denied the motion. Among other things, it specifically "ordered that Defendants' motion to dismiss claims against the Washington, D.C.-based supervisory defendants, Myers and Torres, for lack of personal jurisdiction is denied." (JA45 (emphasis omitted).) It further "ordered that Defendants' motion to dismiss claims on the ground of qualified immunity against the four supervisory defendants, Myers, Torres, Weber, and Rodriguez is denied without prejudice" and allowed for "limited discovery" (in the form of interrogatories and a single deposition of each Appellant) as well as for the issue of qualified immunity to be raised again following this discovery. (Id. (emphasis omitted).) In its accompanying opinion, the District Court purported to apply the Supreme Court's ruling in Bell Atlantic v. Twombly, 550 U.S. 44 (2007), to the allegations against Appellants. In short, it concluded that Plaintiffs sufficiently alleged that Appellants knew of and then acquiesced in the wrongdoing of their subordinates and thereby adequately stated a claim that Appellants possessed the degree of personal involvement required for liability under Bivens.
IS

On May 18, 2009, the Supreme Court decided Iqbal. Appellants moved for reconsideration based on this new opinion, and, following the filing of the Second Amended Complaint on June 8, 2009 (which merely identified one of the previously anonymous Plaintiffs), moved to dismiss pursuant to Rules 12(b)(l), 12(b)(2), 12(b)(6), and 15. On January 28, 2010, the District Court denied the motion to dismiss without prejudice "except with respect to plaintiff Ontaneda's equal protection claim which is dismissed." (JA64A.)
In its opinion, the District Court rejected Appellants' theory that the Supreme Court's decision worked a substantial change in the existing law governing the qualified immunity analysis and the liability of supervisors, at least in the specific circumstances presented by the current proceeding. Because Plaintiffs advanced claims under the Fourth Amendment, they were not required to show discriminatory purpose (unlike their counterpart in Iqbal who brought a claim of invidious discrimination under the First and Fifth Amendments). According to the District Court, they therefore adequately "allege that [Appellants] had actual knowledge, initiated, and directed their subordinate agents to go beyond the limits of their non-judicial warrants in violation of Plaintiffs' Fourth Amendment rights to be free from illegal searches and seizures." Argueta v. U.S. ICE, No. 08-1652, 2010 WL 398839, at *6 (D.N.J. Jan. 27, 2010). In other words, "there are sufficient factual allegations set forth in the Complaint for the Court, in applying its experience and common sense, to conclude that there is a plausible claim against each [Appellant] that their personal involvement, direction and knowledge or acquiescence permitted a search of the residence of plaintiffs without consent in violation of the
19

Fourth Amendment." Id. at *9. The District Court, however, did explain that Iqbal mandated the dismissal of the equal protection claim advanced by Ontaneda because Plaintiffs conceded that there was no direct evidence of any purposeful discrimination.
Appellants filed a timely notice of appeal. We subsequently allowed for the filing of two amicus briefs in support of Plaintiffs and the District Court's rulings, which were submitted by: (1) Amici Curiae Public Justice, the Prisoners' Rights Project of the Legal Aid Society of the City of New York, and the Pennsylvania Institutional Law Project; and (2) Amici Curiae LatinoJustice PRLDEF, the American Civil Liberties Union of New Jersey, the Asian American Legal Defense and Education Fund, and Catholic Charities of the Archdiocese of Newark.
II.
The District Court possessed subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiffs agree that this Court has appellate jurisdiction over Appellants' appeal from the District Court's qualified inununity rulings pursuant to the collateral order doctrine. In Iqbal, the Supreme Court determined that the denial of a motion to dismiss on qualified inununity grounds filed by the United States Attorney General and the FBI Director constituted an appealable collateral order. Iqbal, 129 S. Ct. at 1945-47. Pursuant to Iqbal, our appellate jurisdiction extends beyond merely determining whether the complaint avers a clearly established constitutional violation, and we also have the power to consider the sufficiency of the complaint itself. Id. at 1946-47. "[W]hether a particular complaint sufficiently
20

alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded." Id. at 1946. Accordingly, "the sufficiency of [a plaintiff's] pleadings is both 'inextricably intertwined with' and 'directly implicated by' the qualified immunity defense." Id. at 1946-47 (citations omitted). Because we dispose of this appeal on qualified immunity grounds, we need not-and do not-decide whether we also possess pendent appellate jurisdiction as to the District Court's denial of the motion to dismiss the individual capacity claims against Myers and Torres on personal jurisdiction grounds. We exercise plenary review over the District Court's qualified immunity rulings. See, .!<&, Santiago v. Warminster Township, 629 F.3d 121, 128 (3d Cir. 2010); Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir.2003).
III.
In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court "'recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.'" Iqbal, 129 S. Ct. at 1947-48 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). It is also well established that government officials are immune from liability for damages where 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) (citations omitted).
In this case, Plaintiffs never alleged in their Second Amended Complaint that Appellants actually adopted a facially unconstitutional policy. For instance, they did not claim that Appellants, as part of Operation Return to Sender,
21

ever ordered ICE agents to storm into homes without obtaining the requisite consent. Plaintiffs instead claimed that these four individuals should be held accountable because, among other things, they knew of-and nevertheless acquiesced in-the unconstitutional conduct of their subordinates. The District Court determined that Plaintiffs could pursue a claim under the Fourth Amendment based on a "knowledge and acquiescence" theory because the Fourth Amendment does not require proof of a discriminatory or unlawful purpose (and it further concluded that Appellants adequately alleged such a claim in their pleading). In response, Appellants have argued that: (1) at least after Iqbal, "knowledge and acquiescence," "failure to train," and similar theories of supervisory liability are not viable in the Bivens context and, on the contrary, a supervisor may be held liable only for his or her direct participation in the unconstitutional conduct; and (2) even under such now defunct theories of liability, Plaintiffs failed to allege a facially plausible Bivens claim against Appellants.
We recently observed that "[n]urnerous courts, including this one, have expressed uncertainty as to the viability and scope of supervisory liability after Iqbal." Santiago, 629 F.3d at 130 n.8 (citing Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 190 n.5 (3d Cir. 2009); Dodds v. Richardson, 614 F.3d 1185, 1194 (10th Cir. 2010); Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010)). To date, we have refrained from answering the question of whether Iqbal eliminated---or at least narrowed the scope of-supervisory liability because it was ultimately unnecessary to do so in order to dispose of the appeal then before us. Id.; Bayer, 577 F.3d at 190 n.5. We likewise make the same choice here because we determine that Plaintiffs
22

failed to allege a plausible claim to relief on the basis of the supervisors' "knowledge and acquiescence" or any other similar theory ofliability. Accordingly, we need not (and do not) decide whether Appellants are correct that a supervisor may be held liable in the Bivens context only if he or she directly participates in unconstitutional conduct.
A. Iqbal, Liability of Supervisors, and Pleading Standards
We begin our analysis with the Supreme Court's own recent opinion in Iqbal. This case arose out of the federal government's response to the terrorist attacks on September 11, 2001, which the Court characterized as "'a national and international security emergency unprecedented in the history of the American Republic.'" Iqbal, 129 S. Ct. at 1953 (citation omitted).
The FBI and other entities within the Department of Justice began a massive investigation to identify the perpetrators and prevent any further attacks. Id. at 1943. A subset of 184 high-interest detainees were identified and held under special restrictions designed to prevent communication with either the general prison population or the outside world. Id. Iqbal, a citizen of Pakistan and a Muslim (who was arrested on immigration-related charges, pled guilty, and was eventually deported), was one ofthese high-interest detainees. Id. "The defendants [in his Bivens action] range from the correctional officers who had day-to-day contact with respondent during the term ofhis confinement, to the wardens of the MDC facility, all the way to petitioners [then-Attorney General Ashcroft and FBI Director Mueller]---officials who were at the highest level of the federal law enforcement
23

hierarchy." Id. (citations omitted). The complaint specifically alleged that '''the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men ... as part of its investigation of the events of September 11,'" and '" [t]he policy of holding postSeptember 11th detainees in highly restrictive conditions of confmement until they were 'cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.'" Id. at 1944 (alteration in original) (citations omitted). The pleading posited that the two officials "'each knew of, condoned, and willfully and maliciously agreed to subject' respondent to harsh conditions of confmement 'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest. '" Id. (alteration in original) (citation omitted). Finally, Ashcroft was named as the policy's "'principal architect,'" and Mueller was identified as being "'instrumental in [its] adoption, promulgation, and implementation. '" Id. (alteration in original) (citations omitted).
Ashcroft and Mueller unsuccessfully moved to dismiss the complaint for failure to include sufficient allegations showing their own involvement in clearly established unconstitutional conduct. Id. The Second Circuit affirmed this denial, but the Supreme Court reversed. Id. at 1944-45.
Following the example it set in Twombly, the Supreme Court indicated that, in order to assess the sufficiency of a complaint, it is first necessary to consider the underlying legal principles and elements implicated by the complaint. Id. at 1948. "In the limited settings where Bivens does apply, the implied cause of action is the 'federal analog to suits brought
24

against state officials under . . . § 1983.'" Id. (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). It was therefore correct, the Court noted, for Iqbal to "concede[] that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. (citing, inter alia, Monell v. N.Y. City Dep't of Social Servs., 436 U.S. 658, 691 (1978); Dunlop v. Munroe, 7 Cranch 242, 269, 3 L. Ed. 329 (1812); Robertson v. Sichel, 127 U.S. 507, 515-16 (1888)). The Court accordingly stated that, "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. The Iqbal Court ultimately observed that "[i]n a § 1983 suit or a Bivens action-where masters do not answer for the torts of their servants-the term 'supervisory liability' is a misnomer." Id. at 1949.
As did Iqbal, Plaintiffs here admit that Appellants may not be held personally liable for damages pursuant to a respondeat superior or vicarious liability theory, and the District Court likewise acknowledged as much in its rulings. It is uncontested that a government official is liable only for his or her own conduct and accordingly must have had some sort of personal involvement in the alleged unconstitutional conduct. The District Court, in tum, dismissed Ontaneda's equal protection claim because there was no evidence that Appellants possessed the discriminatory intent required by Iqbal, and Plaintiffs themselves do not challenge this dismissal on appeal. However, as noted above, we assume for purposes of this appeal that a federal supervisory official may be liable in certain circumstances even though he or she
25

did not directly participate in the underlying unconstitutional conduct.
The District Court specifically concluded that a Fourth Amendment claim does not require a showing of a discriminatory purpose and that Plaintiffs could therefore proceed under a "knowledge and acquiescence" theory. Plaintiffs acknowledge that the "tenninology" used to describe "supervisory liability" is "often mixed." (Appellees' Brief at 21.) They contend that a supervisor may be held liable in certain circumstances for a failure to train, supervise, and discipline subordinates. See, e.g., Chinchello v. Fenton, 805 F.2d 126, 132-34 (3d Cir. 1986) (applying § 1983 case law in evaluating and rejecting Bivens claim for failure to train, supervise, and discipline). We accordingly stated in a § 1983 action that "[p]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also, e.g., Santiago, 629 F.3d at 129 ("Instead, Santiago's allegations appear to invoke a theory of liability under which 'a supervisor may be personally liable ... if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.'" (quoting A.M. ex reI. J.M.K. v. Luzerne Cntv. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)) (footnote omitted)). "It is also possible to establish section 1983 supervisory liability by showing a supervisor tolerated past or ongoing misbehavior." Baker v. Monroe Township, 50 F.3d 1186, 1191 n.3 (3d Cir. 1995) (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720,724-25 (3d Cir. 1989)). We further indicated that a supervisor may be liable under § 1983 if he or she implements a policy or
26

practice that creates an unreasonable risk of a constitutional violation on the part of the subordinate and the supervisor's failure to change the policy or employ corrective practices is a cause of this unconstitutional conduct. See. e.g., Brown v. Muhlenberg Township, 269 F.3d 205,216 (3d Cir. 2001).
Having considered the legal framework implicated by Iqbal's complaint, the Supreme Court turned to the complaint itself. "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief. ", Iqbal, 129 S. Ct. at 1949. While detailed factual allegations are not required, the pleading must include more than "an unadorned, the-defendant-unlawfully-harmed-me accusation," '''labels and conclusions,'" '''a formulaic recitation of the elements of a cause of action,'" or '''naked assertion[s].'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 555, 557). Accordingly, the basic principle that a court must accept all allegations as true is inapplicable to either legal conclusions or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. (citing Twombly, 550 U.S. at 555). Instead, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face. ", Id. (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). This "plausibility" standard does not require probability, but it does demand more than a sheer possibility that the defendant acted unlawfully. Id. Therefore, a complaint pleading facts that are merely consistent with liability is insufficient. Id.
27

Following Twombly, the Supreme Court in Iqbal offered a multi-prong approach for determining whether a pleading meets the plausibility requirement. After identifying the elements that a plaintiff must plead to state a legally cognizable cause of action, see, e.g., Santiago, 629 F.3d at 130 & n.7, a court "can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth" (although they may provide a helpful framework for the complaint), Iqbal, 129 S. Ct. at 1950. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
Applying that approach, the Court determined that Iqbal's complaint "has not 'nudged [his] claims' of invidious discrimination 'across the line from conceivable to plausible.'" Id. at 1950-51 (alteration in original) (quoting Twombly, 550 U.S. at 570). It explained that certain conclusory and formulaic allegations were not entitled to any assumption of truth (specifically the allegation that Ashcroft and Mueller knew of, condoned, and maliciously agreed to subject Iqbal to harsh conditions of confinement as a matter of policy solely on account of his religion, race, or national origin, and the respective characterizations of Ashcroft as the '''principal architect'" of this invidious policy as well as of Mueller as being '"instrumental''' in the policy's adoption and execution). Id. at 1951 (citations omitted). The Court then explained that the remaining factual allegations in the pleadings (specifically that the FBI, under the direction of Mueller, arrested and detained thousands of Arab Muslim men as part of the investigation and that the policy of holding detainees in highly restrictive conditions until cleared by the
28

FBI was approved by Ashcroft and Mueller in discussions in the weeks following the terrorist attack) were consistent with Ashcroft and Mueller acting on the basis of race, religion, or national origin. Id. But, "given more likely explanations, they do not plausibly establish this purpose." Id. The Iqbal Court specifically noted, among other things, the specific circumstances that confronted the nation's highest-ranking law enforcement officers in the wake of a devastating and unprecedented attack. Id. at 1951-52.
The Supreme Court also expressly rejected Iqbal's theory that the pleading standards should be tempered where discovery purportedly was to be structured in such a way as to preserve the qualified inununity defense. Id. at 1953-54. Instead, it emphasized that the "basic thrust" of qualified inununity is to free officials from the concerns and burdens of litigation, including discovery. Id. at 1954 (citation omitted). "If a Government official is to devote time to his or her duties, and to the formulation of sound and responsible policies, it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed." Id. The Court emphasized that such "costs are only magnified when Government officials are charged with responding to .. . 'a national and international emergency unprecedented in the history of the American Republic. '" Id. (citation omitted). Ultimately, the Supreme Court believed that the elusive promise of minimally intrusive discovery furnished "especially cold comfort" in light of the need to "give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties." Id. at 1954.
29

B. The Sufficiency of Plaintiffs' Second Amended Complaint
Having addressed the legal elements that a plaintiff must plead to state a legally cognizable claim, we turn to the remaining steps identified by Iqbal: (1) identifYing those allegations that, because they are no more than conclusions, are not entitled to any assumption of truth; and (2) then determining whether the well-pleaded factual allegations plausibly give rise to an entitlement to relief. See, e.g., Iqbal, 129 S. Ct. at 1950; Santiago, 629 F.3d at 129-30. We acknowledge that Plaintiffs filed an extensive and carefully drafted pleading, which certainly contained a number of troubling allegations especially with respect to alleged unconstitutional behavior on the part of lower-ranking ICE agents. Plaintiffs are also correct that, even after Iqbal, we must continue to accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and then determine whether a reasonable inference may be drawn that the defendant is liable for the alleged misconduct. See. e.g., Fowler v. UMPC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). We also recognize that Iqbal made it clear that courts must determine whether the complaint as a whole contains sufficient factual matter to state a facially plausible claim and that such a plausibility requirement "is not akin to a 'probability requirement. ", Iqbal, 129 S. Ct. at 1949; see also. e.g., Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1322-25 (2011). Nevertheless, we ultimately conclude that, like Iqbal, Plaintiffs failed to allege a plausible Bivens claim against the four Appellants.
Initially, certain allegations in the Second Amended Complaint were conclusory in nature and merely provided, at
30

best, a "framework" for the otherwise appropriate factual allegations. Iqbal, 129 S. Ct. at 1950. For instance, the broad allegations regarding the existence of a "culture of lawlessness" are accorded little if any weight in our analysis. (See JA532, JA561.) We further note that the relevant counts in the pleading contained boilerplate allegations mimicking the purported legal standards for liability, which we do not assume to be true. We also must reject certain broad characterizations made by the District Court, which were not supported by either the actual factual allegations in the Second Amended Complaint or reasonable inferences from such allegations. Most significantly, the District Court went too far by stating that Myers and Torres "worked on these issues everyday." Argueta, 2010 WL 398839, at *8.
Turning to the non-conclusory factual allegations in the Second Amended Complaint, we begin with the critical issue of notice. Plaintiffs did reference an impressive amount of documentation that allegedly provided notice to Appellants of their subordinates' unconstitutional conduct. However, these alleged sources of notice were fatally flawed in one way or another. Broadly speaking, we must point out the typical "notice" case seems to involve a prior incident or incidents of misconduct by a specific employee or group of employees, specific notice of such misconduct to their superiors, and then continued instances of misconduct by the same employee or employees. The typical case accordingly does not involve a "knowledge and acquiescence" claim premised, for instance, on reports of subordinate misconduct in one state followed by misconduct by totally different subordinates in a completely different state. Although there were some New Jerseyspecific allegations in the Second Amended Complaint, we are generally confronted here with an attack on the alleged
31

misconduct of numerous ICE agents at different raids executed across the country over a period of years. As Appellants further point out, the court cases specifically cited in Plaintiffs' pleading either did not involve individual capacity claims against Myers and Torres, were filed after at least some of the New Jersey raids specifically alleged in the Second Amended Complaint took place, or did not even involve Operation Return to Sender. All of these cases were also filed outside of New Jersey, and certain other alleged sources of notice implicated raids that took place in other states, especially in New Haven, Connecticut. Likewise, some alleged sources (like the February 2008 hearing and the March 2008 UN report) post-dated most of the specific New Jersey raids that allegedly harmed Plaintiffs themselves. In the end, we conclude that Plaintiffs did not plausibly allege that the Appellants had legally sufficient notice of the underlying unconstitutional conduct of their subordinates.
Second, we observe that allegations specifically directed against Appellants themselves (unlike the allegations directed at the agents who actually carried out the raids) described conduct consistent with otherwise lawful behavior. See, e.g., Iqbal, 129 S. Ct. at 1950. In other words, a federal official specifically charged with enforcing federal immigration law appears to be acting lawfully when he or she increases arrest goals, praises a particular enforcement operation as a success, or characterizes a home entry and search as an attempt to locate someone (i.e., a fugitive alien). In fact, the qualified immunity doctrine exists to encourage vigorous and unflinching enforcement of the law. See, e.g., id. at 1953-54. We add that, far from adopting a facially unconstitutional policy or expressly ordering ICE agents to engage in unconstitutional home entries and searches, Myers
32

clearly stated in her response to the National Immigration Forum correspondence that agents were required to obtain consent before entering private residences and that all allegations of misconduct were taken seriously and fully investigated (and that, among other things, similar statements were made by Weber in connection with his "'[w]e see it as trying to locate someone" comment to the press).
We also agree with Appellants' assertion that Plaintiffs themselves did not really identify in their pleading what exactly Appellants should have done differently, whether with respect to specific training programs or other matters, that would have prevented the unconstitutional conduct. See. .!<:&., Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001); Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). For instance, the Inspector General's report, emphasized in the Second Amended Complaint, actually stated that all FOT members were required to complete a special three-week basic training course within two years of their assigmnent, most officers had completed the requisite training, and, in any case, all team members had previously undergone some form of basic law enforcement training (which presumably would have covered basic principles governing, among other things, the entry into a private residence without a judicial warrant). Far from recommending a complete training overhaul, the Inspector General ultimately recommended a "refresher course," and ICE accepted this recommendation. (JA277.)
We also cannot overlook the fact that Appellants themselves occupied relatively high-ranking positions in the federal hierarchy. Following the example set by the District Court, Plaintiffs assert that Appellants cannot be compared with Attorney General Ashcroft, who held the highest
33

position in the federal law enforcement hierarchy. They add that the Iqbal Court emphasized that both Ashcroft and Mueller had to make quick policy decisions to respond to an unprecedented national emergency, while, on the other hand, Appellants oversaw Operation Return to Sender over a number of years. We certainly acknowledge that it is crucial to consider context and the particular circumstances of each and every case. See, e.g., Iqbal, 129 S. Ct. at 1950. However, the context here involved, at the very least, two very high-ranking federal officials based in Washington D.C. who were charged with supervising the enforcement of federal immigration law throughout the country (as well as two other officials responsible for supervising such enforcement throughout an entire state). Appellants accordingly note that Myers and FBI Director Mueller reported directly to their respective agency heads (the Secretary of Homeland Security and the Attorney General), were appointed by the President and confIrmed by the Senate, and were responsible for setting national and international polices. In fact, it appears uncontested that Myers and Torres oversaw an agency with more than 15,000 employees and a budget ofmore than $3.1 billion.
In Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), a civilian employee of the Pennsylvania State Police fIled a civil rights action under § 1983 and 42 U.S.C. § 1985 against several defendants, including Pennsylvania Governor Thornburgh and Attorney General Zimmerman, id. at 119798. Among other things, she alleged that she was a victim of unlawful retaliation in the form of an unlawful work suspension and impermissible changes in her duties and working conditions. Id. Affirming the district court's dismissal of her claims against these two state officials, this
34

Court specifically determined that she failed "to allege knowledge and acquiescence with the required particularity" as to her claim against the Governor. Id. at 1208. We observed that "Rode's assertion that the Governor had 'responsibility for supervising' the other defendants is irrelevant." Id. We then expressly rejected her "hypothesis" that the Governor had personal knowledge of the retaliation "directed against Hileman [Rode's co-plaintifi] because of numerous articles that appeared in newspapers throughout the state and through the introduction of a legislative resolution seeking an investigation into racially motivated retaliation against [Pennsylvania State Police] employees, the filing of grievances with the Governor's office of administration, and telephone calls and correspondence with the office of the Lieutenant Governor." Id. In the end, we concluded that, "[i]n a large state employing many thousands of employees, a contrary holding would subject the Governor to potential liability in any case in which an aggrieved employee merely transmitted a complaint to the Governor's office of administration or to the Lieutenant Governor's office." Id.
We add that the Ninth Circuit reached the same result in a recent post-Iqbal decision. In al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), rev'd on other grounds, --- S. Ct. ---, 2011 WL 2119110 (May 31, 2011), the Ninth Circuit expressly rejected a "conditions of confinement" claim against Ashcroft brought by an individual detained under the material witness statute following September 11 because "the complaint does not allege any specific facts-such as statements from Ashcroft or from high-ranking officials in the DOJ---establishing that Ashcroft had personal involvement in setting the conditions of confinement." Id. at 978. The Ninth Circuit acknowledged that al-Kidd made several allegations
35

regarding media reports and other sources of information describing the conditions of confmement, but it then explained that ''the non-specific allegations in the complaint regarding Ashcroft's involvement fail to nudge the possible to the plausible, as required by Twombly." Id. at 978-79; see also, e.g., Santiago, 629 F.3d at 134 (concluding that "allegation that Lt. Springfield was placed in charge of the operation, coupled with what happened during the operation, [failed to make it] plausible that Lt. Springfield knew of and acquiesced in the use of excessive force against Santiago.").
We acknowledge that the specific circumstances presented in this prior case law may be distinguishable in one way or another. For instance, the appointed head of a federal agency, charged with enforcing the law and specifically implementing a particular enforcement operation, clearly possessed different responsibilities than the elected governor of a state. See, e.g., Atkinson, 316 F.3d at 270-71 (distinguishing state correctional commissioner and lowerranking officials from governor and state attorney general). However, we cannot overlook the marked similarities between the allegations at issue here and the allegations deemed to be insufficient in Rode and al-Kidd. Furthermore, we again note that Myers and Torres, in particular, had national and even international policymaking and supervisory responsibilities. In the end, we believe that this prior case law supports our conclusion that Plaintiffs failed to meet the plausibility requirement.6
6 We further note that the Supreme Court's recent ruling in Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011), does not alter our conclusion in the current matter. The Court considered a motion to dismiss a securities fraud
36

Finally, we wish to emphasize that our ruling here does not leave Plaintiffs without any legal remedy for the alleged violation of the United States Constitution. Chavez, Galindo, and W.C. are still free to pursue their official capacity claims for injunctive relief against any further intimidation or unlawful entry into their home. Also, we do not address Plaintiffs' individual capacity claims for damages against the lower-ranking ICE agents named in the Second Amended Complaint. See, e.g., Iqbal, 129 S. Ct. at 1952 ("It is important to note, however, that we express no opinion concerning the sufficiency of respondent's complaint against the defendants who are not before us. Respondent's account of his prison ordeal alleges serious official misconduct that we need not address here. Our decision is limited to the determination that respondent's complaint does not entitle him to relief from petitioners [Ashcroft and Mueller].").
IV.
For the foregoing reasons, we will reverse the District Court's order denying the motion to dismiss the individual capacity claims for damages against Appellants on qualified inununity grounds. We will remand for further proceedings consistent with our opinion.
claim against a pharmaceutical company for its alleged failure to disclose reports of adverse events associated with one of its drugs. Id. at 1313-25. Unlike in Iqbal, the Matrixx Court did not address a Bivens action against high-ranking federal officials. Id.
37

 
 No. 10-1479
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MARIA ARGUETA, et al., Plaintiffs-Appellees,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (―ICE‖), et al., Defendants-Appellants.

Appeal from the U.S. District Court for the District of New Jersey No. 2:08-cv-1652-PGS

BRIEF OF AMICI CURIAE PUBLIC JUSTICE, THE PRISONERS’ RIGHTS PROJECT OF THE LEGAL AID SOCIETY OF THE CITY OF
NEW YORK, AND THE PENNSYLVANIA INSTITUTIONAL LAW PROJECT IN SUPPORT OF PLAINTIFFS-APPELLEES

Alexander A. Reinert Associate Professor of Law BENJAMIN N. CARDOZO SCHOOL OF LAW 55 Fifth Avenue, Room 938 New York, NY 10003 (212) 790-0403

Steven Banks John Boston THE LEGAL AID SOCIETY OF THE CITY OF NEW YORK, PRISONERS’ RIGHTS PROJECT 199 Water Street New York, NY 10038 (212) 577-3530
Additional counsel listed on reverse

Claire Prestel PUBLIC JUSTICE 1825 K Street NW, Suite 200 Washington, DC 20006 (202) 797-8600
Angus Love THE PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch Street, Suite 304 South Philadelphia, PA 19106 (215) 925-2966

United States Court of Appeals for the Third Circuit
Corporate Disclosure Statement and Statement of Financial Interest
No. 10-1479
Maria Argueta, et al.
V.
U.S. Immigration and Customs Enforcement (ICE), et al.
Instructions
Pursuant to Rule 26.1, Federal Rules of Appellate Procedure any nongovernmental corporate party to a proceeding before this Court must file a statement identifying all of its parent corporations and listing any publicly held company that owns 10% or more of the party’s stock.
Third Circuit LAR 26.1(b) requires that every party to an appeal must identify on the Corporate Disclosure Statement required by Rule 26.1, Federal Rules of Appellate Procedure, every publicly owned corporation not a party to the appeal, if any, that has a financial interest in the outcome of the litigation and the nature of that interest. This information need be provided only if a party has something to report under that section of the LAR.
In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy estate shall provide a list identifying: 1) the debtor if not named in the caption; 2) the members of the creditors’ committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption which is an active participant in the bankruptcy proceedings. If the debtor or the bankruptcy estate is not a party to the proceedings before this Court, the appellant must file this list. LAR 26.1(c).
The purpose of collecting the information in the Corporate Disclosure and Financial Interest Statements is to provide the judges with information about any conflicts of interest which would prevent them from hearing the case.
The completed Corporate Disclosure Statement and Statement of Financial Interest Form must, if required, must be filed upon the filing of a motion, response, petition or answer in this Court, or upon the filing of the party’s principal brief, whichever occurs first. A copy of the statement must also be included in the party’s principal brief before the table of contents regardless of whether the statement has previously been filed. Rule 26.1(b) and (c), Federal Rules of Appellate Procedure.
If additional space is needed, please attach a new page.
(Page 1 of 2)

Pursuant to Rule 26.1 and Third Circuit LAR 26.1, Public Justice

following disclosure:

(Name of Party)

makes the

1) For non-governmental corporate parties please list all parent corporations:

None.
2) For non-governmental corporate parties please list all publicly held companies that hold 10% or more of the party’s stock:
None.
3) If there is a publicly held corporation which is not a party to the proceeding before this Court but which has as a financial interest in the outcome of the proceeding, please identify all such parties and specify the nature of the financial interest or interests:
None.
4) In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy estate must list: 1) the debtor, if not identified in the case caption; 2) the members of the creditors’ committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption which is active participant in the bankruptcy proceeding. If the debtor or trustee is not participating in the appeal, this information must be provided by appellant.
n/a

s/Claire Prestel
(Signature of Counsel or Party)

Dated: Dec. 8, 2010 (Page 2 of 2)

rev: 1112008

Pursuant to Rule 26.1 and Third Circuit LAR 26.1, Legal Aid Soc’y, Prisoners’ Rights Project makes the

following disclosure:

(Name of Party)

1) For non-governmental corporate parties please list all parent corporations:

None.
2) For non-governmental corporate parties please list all publicly held companies that hold 10% or more of the party’s stock:
None.

3) If there is a publicly held corporation which is not a party to the proceeding before this Court but which has as a financial interest in the outcome of the proceeding, please identify all such parties and specify the nature of the financial interest or interests:
None.
4) In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy estate must list: 1) the debtor, if not identified in the case caption; 2) the members of the creditors’ committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption which is active participant in the bankruptcy proceeding. If the debtor or trustee is not participating in the appeal, this information must be provided by appellant.
n/a

s/Claire Prestel (Signature of Counsel or Party)

Dated: Dec. 8, 2010 (Page 2 of 2)

rev: 1112008

Pursuant to Rule 26.1 and Third Circuit LAR 26.1, Pa. Institutional Law Project makes the

following disclosure:

(Name of Party)

1) For non-governmental corporate parties please list all parent corporations:

MLOTIM
2) For non-governmental corporate parties please list all publicly held companies that hold 10% or more of the party’s stock:
None
3) If there is a publicly held corporation which is not a party to the proceeding before this Court but which has as a financial interest in the outcome of the proceeding, please identify all such parties and specify the nature of the financial interest or interests:
None
4) In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy estate must list: 1) the debtor, if not identified in the case caption; 2) the members of the creditors’ committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption which is active participant in the bankruptcy proceeding. If the debtor or trustee is not participating in the appeal, this information must be provided by appellant.
n/a

s/Claire Prestel
(Signature of Counsel or Party)

Dated: Dec. 8, 2010 (Page 2 of 2)

rev: 1112008

TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................. ii INTERESTS OF AMICI CURIAE...........................................................................1 SUMMARY OF ARGUMENT...............................................................................2 ARGUMENT..........................................................................................................5 I. Iqbal Did Not Eliminate Supervisory Liability As It Has Existed in the
Third Circuit. ................................................................................................5 II. Appellants’ Argument Is Contrary to the Holdings of the Overwhelming
Majority of Post-Iqbal Decisions. .................................................................9 III. The Availability of Supervisory Liability Is Critical To Deterring
Constitutional Violations and Compensating Victims of Those Violations. 14 IV. The United States Itself Has Recognized the Importance of Holding
Supervisors Accountable to Prevent Constitutional Violations....................24 CONCLUSION ....................................................................................................31
i

TABLE OF AUTHORITIES Cases al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), cert. granted
on other grounds, 131 S. Ct. 415 (2010) .....................................................10 A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572
(3d Cir. 2004) ...............................................................................................5 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) ............................23 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).......................................................passim Baker v. Monroe Twp., 50 F.3d 1186 (3d Cir. 1995) ...............................................5 Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939
(S.D.N.Y. June 26, 2009)............................................................................13 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).............................................................................passim Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999) .....................................................7 Brenes-Laroche v. Toledo Davila, 682 F. Supp. 2d 179
(D. P.R. 2010).............................................................................................16 Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001) .......................................5 Bullock v. Beard, No. 3:10-cv-401, 2010 WL 1507228
(M.D. Pa. Apr. 14, 2010) ............................................................................14 Butz v. Economou, 438 U.S. 478 (1978)..........................................................15, 16 Cagle v. Gravlin, No. 9:09-cv-0648, 2010 WL 2088267
(N.D.N.Y. Apr. 29, 2010) ...........................................................................13 Carlson v. Green, 446 U.S. 14 (1980).............................................................15, 20 Cleveland-Perdue v. Brutsche, 881 F.2d 427 (7th Cir. 1989) ................................20 Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) ...............................................15
ii

Coscia ex rel. Estate of Coscia v. Town of Pembroke, Mass., 715 F. Supp. 2d 212 (D. Mass 2010)...........................................................11
Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) .........................................................21 Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010) .......................................................1 Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) ............................................9 Doe v. Sch. Bd. of Broward County, Fla., 604 F.3d 1248 (11th Cir. 2010)............11 D'Olimpio v. Crisafi, 09 Civ. 7283, 2010 WL 2428128
(S.D.N.Y. June 15, 2010)............................................................................12 Dotson v. Stultz, No. 1:02-cv-164, 2009 WL 2058820
(E.D. Tenn. July 6, 2009)............................................................................11 Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388 (8th Cir. 1997) ....................20 Farmer v. Brennan, 511 U.S. 825 (1994)..............................................................21 Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989)..........................27 Hammond v. Gordon County, 316 F. Supp. 2d 1262 (N.D. Ga. 2002)...................18 Hardy v. Diaz, No. 9:08-cv-1352, 2010 WL 1633379
(N.D.N.Y. Mar. 30, 2010)...........................................................................13 Herrera v. Hall, No. 1:08-cv-01882, 2010 WL 2791586
(E.D. Cal. July 14, 2010) ............................................................................11 Hudson v. McMillian, 503 U.S. 1 (1992) ................................................................7 Hui v. Castaneda, 130 S. Ct. 1845 (2010)...............................................................1 Keating v. City of Miami, 598 F.3d 753 (11th Cir. 2010) ......................................11 Keenan v. City of Philadelphia, 983 F.2d 459 (3d Cir. 1992)................................23 LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987)......................................................21 Langford v. Norris, 614 F.3d 445 (8th Cir. 2010)..................................................10 Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991) ...................................22
iii

Liberty and Prosperity 1776, Inc. v. Corzine, No. 08-2642, 2010 WL 2557212 (D. N.J. June 24, 2010) ...............................................................................14
Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995)...........................................7
Mason v. Hann, No. 01 Civ. 523, 2010 WL 3025669 (S.D.N.Y. July 26, 2010) ...12
Massenburg v. Adams, 08 Civ. 106, 2010 WL 1279087 (E.D. Va. Mar. 31, 2010) ............................................................................................14
McCarroll v. Federal Bureau of Prisons, No. 9:08-cv-1343, 2010 WL 4609379 (N.D.N.Y. Sept. 30, 2010) ..........................................................................12
Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) ........................................1
Mincy v. McConnell, No. 09 Civ. 236, 2010 WL 3092681 (W.D. Pa. July 15, 2010).............................................................................13
Mitchell v. Rappahannock Regional Jail Auth., 703 F. Supp. 2d 549 (E.D.Va. 2010)......................................................................................14, 18
Ortiz v. Jordan, 316 F. App’x 449 (6th Cir. 2009), rev'd in part sub nom. Ortiz v. Jordan, 316 F. App'x 449 (6th Cir. 2009), cert. granted on other grounds, 130 S. Ct. 2371 (2010) ...................................................19
Peddle v. Sawyer, 64 F. Supp. 2d 12 (D. Conn. 1999)...........................................18
Preschooler II v. Clark County Sch. Bd. of Trustees, 479 F.3d 1175 (9th Cir. 2007) ............................................................................................23
Pruitt v. Clark, No. 1:07-cv-01709, 2010 WL 3063254 (E.D. Cal. Aug. 3, 2010) .............................................................................11
Qasem v. Toro, No. 09 Civ. 8361, 2010 WL 3156031 (S.D.N.Y. Aug. 10. 2010) ...........................................................................12
Rahman v. Fischer, No. 08 Civ. 4368, 2010 WL 1063835 (S.D.N.Y. Mar. 22, 2010) ...........................................................................13
Ramirez v. Jim Wells County, Tex., No. 09 Civ. 209, 2010 WL 2598304 (S.D. Tex. June 25, 2010) ...........................................................................22
Reed v. Penasquitos Casablanca Owner's Ass'n, Nos. 08-55069, 08-55072, 08-55151, 381 F. App'x 674, 2010 WL 2232339 (9th Cir. 2010) ................27 iv

Riley v. Olk-Long, 282 F.3d 592 (8th Cir. 2002) ...................................................19 Robinson v. Fed. Bureau of Prisons, 2010 WL 1752587 (E.D.N.Y.
Mar. 24, 2010) ............................................................................................13 Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989) .....................................................5 Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009)..……………………….10 Sash v. United States, 674 F. Supp. 2d 531 (S.D.N.Y. 2009) ................................13 Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994) .........................................................22 Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725
(S.D.N.Y. July 20, 2009) ............................................................................13 Stoneking v. Bradford Area School Dist., 882 F.2d 720 (3d Cir. 1989) ...................5 T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010)........................................................11 Tafari v. McCarthy, 714 F. Supp. 2d 317 (N.D.N.Y. Mar 31, 2010) .....................12 Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008)..................................................19 Valdes v. Crosby, 450 F.3d 1231 (11th Cir. 2006), cert. dismissed,
549 U.S. 1249 (2007)..............................................................................7, 20 White v. Holmes, 21 F.3d 277 (8th Cir. 1994) .........................................................7 White v. Ottinger, 442 F. Supp. 2d 236 (E.D. Pa. 2006) ........................................18 Williams v. Santana, No. 09-10198, 340 F. App’x 614, 2009 WL 2435053
(11th Cir. 2009) ..........................................................................................22 Wilson v. Seiter, 501 U.S. 294 (1991) ...................................................................21 Wright v. Leis, No. 08-3037, 335 F. App'x 552, 2009 WL 1853752
(6th Cir. June 30, 2009) ..............................................................................10 Zion v. Nassan, No. 09-383, --- F. Supp. 2d ----, 2010 WL 2926218
(W.D. Pa. July 23, 2010).............................................................................13 Statutes 42 U.S.C. §1983.......................................................................................... 9, 15, 27
v

42 U.S.C. §1997a..................................................................................................24
N.J. Stat. Ann. §59:10-1........................................................................................17
N.Y. Pub. Officers Law Art. 2 §17........................................................................17
Other Authorities
Allen J. Beck & Paige M. Harrison, Sexual Victimization in Prisons & Jails Reported by Inmates, 2008–09 (U.S. Dep’t of Justice, Bureau of Justice Statistics, 2010) ..........................................................................................17
Am. Compl., United States v. Erie County, No. 09 Civ. 849 (W.D.N.Y. July 23, 2010)…………………………………………………………..……………26
Br. of United States as Amicus Curiae in Reed v. Penasquitos Casablanca Owner’s Ass'n, Nos. 08-55069, 08-55072, 08-55151, 381 F. App'x 674, 2010 WL 2232339 (9th Cir. June 2, 2008)............................................26, 27
Compl., Johnson v. Fla., No. 87-cv-369 (M.D. Fla.)………………..……………25
Compl., United States v. Columbus Consol. City/County Gov't, No. 4:99-cv-00132 (M.D. Ga. Sept. 23, 1999)………………..……….…...25
Compl., No. 2:02-cv-02382, United States v. Nassau County (E.D.N.Y. Apr. 22, 2002)......................................................................24, 25
Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055, 1060 (1972)...................................................................16
Letter from Alexander Acosta, Ass’t Attorney General, to Hon. James E. McGreevey (Nov. 12, 2004)……………….………………………………28
Letter from Loretta King, Acting Ass’t Attorney General, to Hon. Chris Collins, County Executive (July 15, 2009)..…………………………………...........30
Letter from Loretta King, Acting Ass’t Attorney General, to Martin S. Gusman, Orleans Parish Criminal Sheriff (Sept. 11, 2009)..…………………...........30
Letter from Loretta King, Acting Ass’t Attorney General, to Raymond P. Fitzpatrick, Jr., Esq. (June 9, 2009)..…………………………………...29, 30
vi

Letter from Ralph F. Boyd, Jr., Ass’t Attorney General, to Hon. James E. McGreevey (Apr. 8, 2003)…………………..…………………………28, 29
Letter from Ralph F. Boyd, Jr., Ass’t Attorney General, to Robert D. Prunetti, County Executive (Oct. 9, 2002)………………………..………………….28
Letter from Shanetta Y. Cutlar, Chief, Special Litig. Section, to Comm'r Elton Lewis, Virgin Islands Police Dep’t, (Oct. 5, 2005)………………………...29
Letter from Thomas E. Perez, Ass’t Attorney General, to Hon. Andrew J. Spano, County Executive (Nov. 19, 2005)…………………………………………30
Letter from Thomas E. Perez, Ass’t Attorney General, to Hon. Jack Markell (Nov. 9, 2010)……………………………………………………………....29
Mem. Opp. Defs.’ Mot. for Suum. J., United States v. State of Ariz., No. 97-cv-476 (D. Ariz. Nov. 25, 1998)…………………………………...25
Richard A. Posner, An Economic Analysis of Sex Discrimination Laws, 56 U. Chi. L. Rev. 1311 (1989)...................................................................17
Stephen G. Gilles, Negligence, Strict Liability and the Cheapest Cost Avoider, 78 Va. L. Rev. 1291 (1992).........................................................................16
vii

INTERESTS OF AMICI CURIAE Public Justice is a national public interest law firm dedicated to preserving access to justice, remedying government and corporate wrongdoing, and holding the powerful accountable in courts. As part of its access-to-justice work, Public Justice created an Iqbal Project in 2009 to combat misuse of the Supreme Court’s decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Project tracks developments in the case law and provides assistance to counsel facing Iqbal-based motions. Public Justice is concerned that overbroad readings of Iqbal threaten to deny justice to many injured plaintiffs with meritorious claims. In addition to Public Justice’s Iqbal-related interest in this case, the firm also represents prisoners, arrestees, other detainees, their family members, and other plaintiffs in a variety of cases involving constitutional claims. See, e.g., Hui v. Castaneda, 130 S. Ct. 1845 (2010); Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010); Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005); Everett v. Cherry, No. 08-00622 (E.D. Va.) (case pending). Public Justice is concerned that Appellants’ arguments regarding supervisory liability will, if accepted, prevent many plaintiffs with constitutional claims from obtaining a full remedy. The Legal Aid Society of the City of New York is a private organization that has provided free legal assistance to indigent persons in New York City for over 125 years. Through its Prisoners’ Rights Project, the Society seeks to ensure that
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prisoners’ constitutional and statutory rights are protected. The Society advocates on behalf of prisoners in the New York City jails and New York state prisons, and conducts litigation on prison conditions. The Society often litigates claims of supervisory liability.
The Pennsylvania Institutional Law Project is a private not-for-profit organization created to ensure equal access to justice for indigent institutionalized persons. Part of the Pennsylvania Legal Aid Network, the Institutional Law Project provides direct representation services, self-help and other legal materials, and class representation to eligible low-income residents of Pennsylvania’s prisons, jails, state hospitals, and state centers. The Project also takes part in advocacy and legislative initiatives concerning institutional reform in Pennsylvania.1
SUMMARY OF ARGUMENT Amici Public Justice, the Prisoners’ Rights Project of the Legal Aid Society of the City of New York, and the Pennsylvania Institutional Law Project file this brief in support of Appellees Maria Argueta, Walter Chavez, Ana Galindo, W.C.,
1 All parties have consented to the filing of this brief. No party’s counsel authored the brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person— other than amici, their members, or their counsel—contributed money that was intended to fund preparing or submitting the brief.
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Arturo Flores, Bybyana Arias, Juan Ontaneda, Veronica Covias, and Yesica Guzman.
Appellants make an untenable argument about the availability of supervisory liability after Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009): they suggest that recovery against supervisory officials is permissible only when those officials participate directly in the same unconstitutional misconduct committed by their subordinates. Appellants’ Br. 18 (emphasizing that the supervisory defendants are not alleged to have themselves ―searched or seized . . . the plaintiffs or participated in or planned‖ the home raids). In this extreme view, which is contrary to decades of Third Circuit case law, neither a supervisor’s knowledge of and acquiescence in a subordinate’s wrongful conduct, nor a failure to respond to a pattern of unlawful activity, is ever sufficient to hold a supervisor liable in an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Appellants’ Br. 17, 24.
Appellants’ position should be rejected for at least four reasons. First, it finds no support in the reasoning or language of Iqbal, which acknowledged that a supervisor may still be liable for ―violations arising from his or her superintendent responsibilities.‖ Iqbal, 129 S. Ct. at 1949. At most, Iqbal rejected a ―knowledge and acquiescence‖ theory of supervisory liability for equal protection claims because in equal protection cases, plaintiffs must show intentional discrimination,
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not merely knowledge. Id. at 1948–49. There is no equal protection claim at issue here.
Second, Appellants’ extreme view is inconsistent with the approach taken by the vast majority of lower courts, which have held that supervisors may violate the Constitution in different ways than subordinates, either because the supervisors’ duties are different or because the supervisors’ conduct is governed by different legal standards. Failing to recognize that fact will obstruct the enforcement of constitutional norms by immunizing supervisory misconduct that is often a more fundamental and persistent cause of constitutional violations than the direct conduct of line employees.
Third, adoption of Appellants’ position would effectively eliminate supervisory liability altogether, notwithstanding numerous examples of the importance of supervisory liability in remedying, deterring, and enjoining ongoing constitutional violations.
Finally, Appellants’ position on supervisory liability is sharply at odds with the position taken by the United States Department of Justice in its affirmative enforcement of constitutional rights against state and local entities and officials.
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ARGUMENT I. Iqbal Did Not Eliminate Supervisory Liability As It Has Existed in the
Third Circuit. In the Third Circuit, it is well-settled that government officials with superintendent responsibilities may be held liable for constitutional violations in many circumstances not involving their direct participation in subordinates’ misconduct. For example, supervisors may be liable when they had ―actual knowledge of and acquiesce[d]‖ in subordinates’ misconduct, Baker v. Monroe Twp., 50 F.3d 1186, 1194 & n.5 (3d Cir. 1995), ―tolerated past or ongoing‖ misconduct, id. at 1191 n.3, directed or encouraged such misconduct, see A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Ctr., 372 F.3d 572, 586 (3d Cir. 2004), and when, ―with deliberate indifference to the consequences,‖ they ―established and maintained a policy, practice or custom which directly caused . . . constitutional harm.‖ Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989). This Court has made clear that there must be a causal connection between the supervisors’ acts or omissions and the plaintiff’s injury, see, e.g., Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001), Sample v. Diecks, 885 F.2d 1099, 1188 (3d Cir. 1989), but direct participation in subordinates’ misconduct has never been required. Nothing in Iqbal undermines the Third Circuit’s approach. In Iqbal, the Court started its review of the supervisory claims in that case by noting that the
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plausibility of any claim is context-specific. 129 S. Ct. at 1948, 1950. In Iqbal itself, the only causes of action before the Court were Bivens claims for discrimination alleged against former Attorney General Ashcroft and Federal Bureau of Investigation Director Robert Mueller. Id. at 1948–49. In that context, the Supreme Court held that a ―knowledge and acquiescence‖ theory of supervisory liability was inappropriate because constitutional discrimination claims depend on proof of the defendant’s own discriminatory purpose. Id. at 1949. That is, a supervisor who has only knowingly acquiesced in a subordinate’s conduct, but who lacks discriminatory intent, simply has not violated the prohibition on intentional discrimination. Id.
In reaching that limited and context-specific conclusion, the Supreme Court expressed no intent to eviscerate supervisory liability in its entirety or to require supervisors’ direct participation in the unconstitutional conduct of their subordinates. The Court noted that supervisory liability is a ―misnomer‖ to the extent that it suggests that a supervisor may be liable solely because of the misconduct of a subordinate. Id. at 1949. But only two sentences later it also made clear that an official may be held liable for ―violations arising from his or her superintendent responsibilities.‖ Id. (emphasis supplied). That language cannot be squared with the kind of direct-participation requirement that Appellants would impose.
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Iqbal did hold, as Appellants note, that to be liable under Bivens, supervisors must violate the Constitution themselves. But case law demonstrates that there are many ways in which supervisory governmental officials can violate the Constitution, often without engaging in exactly the same conduct as their subordinates (or acting with exactly the same culpable state of mind). For example, while subordinate correction officers who use force directly against inmates violate the constitution when they behave ―maliciously and sadistically for the very purpose of causing harm,‖ Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quotation marks omitted), the officials responsible for supervising such officers violate the Constitution if, without using any force themselves, they exhibit deliberate indifference to the risk that their subordinates will inflict force intentionally and unnecessarily upon detainees. Valdes v. Crosby, 450 F.3d 1231, 1243–44 (11th Cir. 2006), cert. dismissed, 549 U.S. 1249 (2007); Curry v. Scott, 249 F.3d 493, 506 n.5 (6th Cir. 2001); Blyden v. Mancusi, 186 F.3d 252, 264–65 (2d Cir. 1999); White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994) (claim against supervisor in use of force case decided under deliberate indifference standard); Madrid v. Gomez, 889 F. Supp. 1146, 1249–51 (N.D. Cal. 1995). Although all the defendants in such a case are in violation of the Constitution, their constitutional violations are established with different evidence precisely because they occupy different levels of the correctional hierarchy.
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In the instant case, as in the above example, the supervisory defendants may be held liable for their own unconstitutional misconduct even though it is not exactly the same as the misconduct of their subordinates. Specifically, Appellants allegedly took no action to correct or modify policies or to institute training in the face of repeated unconstitutional misconduct by their subordinates. JA 538–42 (Second Amended Compl. ¶¶33–42). Because the underlying violations are of Fourth Amendment rights, the supervisors may be held liable under Iqbal’s logic if their objectively unreasonable behavior—including failure to act upon knowledge of past and ongoing Fourth Amendment violations by subordinates—was a cause of future Fourth Amendment violations by subordinates. In this circumstance, the supervisors have themselves violated the Fourth Amendment: no objectively reasonable supervisor would fail to act in the face of information that subordinates were routinely violating the Constitution.2
Nothing about this liability regime is any way inconsistent with Iqbal’s reminder that supervisors are only ―liable for [their] own misconduct.‖ 129 S. Ct. at 1949. To the contrary, it is Appellants who would, in effect, amend the Court’s language to add the modifier ―liable for [their] own misconduct by directly injuring detainees in the exact same way as their subordinates.‖ That standard is
2 In this particular scenario, the state of mind required to establish culpability (objective unreasonableness) happens to be the same for both the supervisors and subordinates, although that is not always the case, as discussed above.
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inconsistent with Iqbal’s recognition that high-level officials can be liable for violating their ―superintendent responsibilities,‖ id., and finds no support anywhere else in the Supreme Court’s decision. II. Appellants’ Argument Is Contrary to the Holdings of the
Overwhelming Majority of Post-Iqbal Decisions. Many appellate and district courts have considered the scope of supervisory liability after Iqbal, and the overwhelming majority have reached conclusions inconsistent with Appellants’ view. The Tenth Circuit’s recent decision in Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010), provides a useful example. The court conducted an extensive analysis of the impact of Iqbal on supervisory liability and came to several conclusions that bear on the instant case. First, the court made clear that the ―personal involvement‖ requirement for §1983 actions may be satisfied without an official’s ―direct participation‖ in unconstitutional conduct. Id. at 1195. Although the Dodds court based this conclusion in part on an interpretation of the word ―causes‖ in §1983, the Supreme Court treats Bivens and §1983 claims interchangeably for personal involvement purposes. See Iqbal, 129 S. Ct. at 1948. Second, the Tenth Circuit concluded that a plaintiff could demonstrate a supervisor’s personal involvement in a constitutional violation, post-Iqbal, by showing that the supervisor ―promulgated, created, implemented or possessed responsibility for the continued operation‖ of a challenged constitutional violation.
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Dodds, 614 F.3d at 1199 (emphasis added). And finally, the court held that to be liable, in addition to being personally involved, there must be a causal link between the supervisor’s conduct and the constitutional violation, and the supervisor must act with the state of mind ―required to establish the alleged constitutional deprivation.‖ Id. In Dodds, this meant that the supervisor had to act with deliberate indifference, because the challenge involved an alleged substantive due process violation. Id. at 1205.
Other circuits have reached similar conclusions after Iqbal. The First, Sixth, Eighth, Ninth and Eleventh Circuits have all held that supervisors may be liable in circumstances that do not involve direct participation in subordinates’ misconduct or direct contact with the plaintiff. See Sanchez v. Pereira-Castillo, 590 F.3d 31, 48–49 (1st Cir. 2009) (holding that supervisors may be liable either as direct participants or by exhibiting deliberate indifference that contributes to a civil rights violation); Wright v. Leis, No. 08-3037, 335 F. App’x 552, 2009 WL 1853752, at *3 (6th Cir. June 30, 2009) (per curiam) (accepting failure to train as a viable theory for claim against supervisor where jail detainee alleged he was subjected to excessive force by line officer); Langford v. Norris, 614 F.3d 445, 463–64 (8th Cir. 2010) (holding that supervisors who ignored complaints of deficient medical care could be liable for deliberate indifference under the Eighth Amendment); al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009), cert. granted on other grounds, 131
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S. Ct. 415 (2010) (acknowledging viability of knowledge and acquiescence theory
of liability); Doe v. Sch. Bd. of Broward County, Fla., 604 F.3d 1248, 1266–67
(11th Cir. 2010) (recognizing the possibility of supervisory liability based on a
failure to correct widespread abuse or the creation of a custom or policy that results
in deliberate indifference to constitutional rights); see also Keating v. City of
Miami, 598 F.3d 753, 764–65 (11th Cir. 2010) (supervisors violate the Constitution
when they know of unconstitutional conduct or that subordinates will act
unconstitutionally, possess the power to order their subordinates to cease, but fail
to do so).3
The Seventh Circuit has taken a similar position, rejecting a deliberate-
indifference theory for an equal-protection claim but limiting that holding to the
equal-protection context and confirming that deliberate indifference remains a
viable theory for other claims. T.E. v. Grindle, 599 F.3d 583, 588–91 (7th Cir.
2010). None of these cases can be squared with Appellants’ view that supervisors
3 See also Pruitt v. Clark, No. 1:07-cv-01709, 2010 WL 3063254, at *5 (E.D. Cal. Aug. 3, 2010) (finding allegation that supervisors knew of and failed to halt cross-gender strip searches by their subordinates sufficient to state a claim for violation of Fourth Amendment); Herrera v. Hall, No. 1:08-cv-01882, 2010 WL 2791586, at *4 (E.D. Cal. July 14, 2010) (approving of liability under the Eighth Amendment where supervisor knew about impending violation and ―had the authority and opportunity to prevent the ongoing violation,‖ but failed to do so); Coscia ex rel. Estate of Coscia v. Town of Pembroke, Mass., 715 F. Supp. 2d 212, 227–28 (D. Mass 2010) (applying deliberate indifference standard after Iqbal); Dotson v. Stultz, No. 1:07-cv-164, 2009 WL 2058820, at *5 (E.D. Tenn. July 6, 2009) (noting that supervisors may be liable when they cause a constitutional violation by, inter alia, failing to discharge a supervisory duty).
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must violate the Constitution in the exact same way as their subordinates in order to be held liable. See, e.g., id. at 591 (―When a state actor’s deliberate indifference deprives someone of his or her protected liberty interest in bodily integrity, that actor violates the Constitution, regardless of whether the actor is a supervisor or subordinate . . . .‖).
The Second Circuit has yet to squarely address the issue, but several district courts within the circuit have held that Iqbal affects supervisory liability only in intentional discrimination cases. See Qasem v. Toro, No. 09 Civ. 8361, --- F. Supp. 2d ----, 2010 WL 3156031, at *4 (S.D.N.Y. Aug. 10. 2010) (the Second Circuit’s pre-Iqbal standards survive ―as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated‖); Mason v. Hann, No. 01 Civ. 523, 2010 WL 3025669, at *5 n.4 (S.D.N.Y. July 26, 2010) (pre-Iqbal standards apply in Fourth and Eighth Amendment cases but not in discrimination claims); D’Olimpio v. Crisafi, 09 Civ. 7283, 09 Civ. 9952, 2010 WL 2428128, at *4–5 (S.D.N.Y. June 15, 2010) (reaching the same conclusion as in Qasem); see also Tafari v. McCarthy, 714 F. Supp. 2d 317, 342–43 (N.D.N.Y. 2010) (court is persuaded that pre-Iqbal standard still applies, at least in deliberate indifference context); McCarroll v. Fed. Bureau of Prisons, No. 9:08-cv-1343, 2010 WL 4609379, at *4 (N.D.N.Y. Sept. 30, 2010) (pre-Iqbal standard ―may‖ still apply except in intentional discrimination cases);
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Sash v. United States, 674 F. Supp. 2d 531, 543–44 (S.D.N.Y. 2009) (same). Others have assumed that the pre-Iqbal standards still apply or have applied them without comment. See Cagle v. Gravlin, No. 9:09-cv-0648, 2010 WL 2088267, at *7 (N.D.N.Y. Apr. 29, 2010) (stating that Iqbal arguably casts doubt on Second Circuit’s standard but assuming that it still applies); Hardy v. Diaz, No. 9:08-cv1352, 2010 WL 1633379, at *7 (N.D.N.Y. Mar. 30, 2010) (applying Second Circuit’s pre-Iqbal law); Robinson v. Fed. Bureau of Prisons, No. 08-CV-902, 2010 WL 1752587, at *5 (E.D.N.Y. Mar. 24, 2010) (applying Second Circuit’s standard without referring to Iqbal); see also Rahman v. Fischer, No. 08 Civ. 4368, 2010 WL 1063835, at *4–5 (S.D.N.Y. Mar. 22, 2010) (collecting cases). But see Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725, at *2 (S.D.N.Y. July 20, 2009) (assuming that only two of the five Second Circuit supervisory liability standards survive Iqbal); Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939 (S.D.N.Y. June 26, 2009) (same).
District courts in the Third Circuit have also rejected the idea that Iqbal eviscerated supervisory liability and have continued to uphold claims based on a supervisor’s knowledge and acquiescence. See Zion v. Nassan, No. 09-383, --- F. Supp. 2d ----, 2010 WL 2926218, at *17–18 (W.D. Pa. July 23, 2010) (applying knowledge and acquiescence standard in Fourth Amendment excessive force case); Mincy v. McConnell, No. 09 Civ. 236, 2010 WL 3092681, at *4 (W.D. Pa. July 15,
13

2010) (permitting liability based on knowledge and acquiescence theory); Liberty and Prosperity 1776, Inc. v. Corzine, No. 08-2642, 2010 WL 2557212, at *4–6 (D.
N.J. June 24, 2010) (recognizing that knowledge and acquiescence standard may
be sufficient for some First Amendment claims, depending on whether
discriminatory purpose is essential to claim); Bullock v. Beard, No. 3:10-cv-401,
2010 WL 1507228, at *4 (M.D. Pa. Apr. 14, 2010) (applying knowledge and acquiescence standard to Eighth Amendment claim).4
In short, Appellants’ extreme position is contrary to the overwhelming
majority of post-Iqbal case law.
III. The Availability of Supervisory Liability Is Critical To Deterring Constitutional Violations and Compensating Victims of Those Violations. The lack of legal support for Appellants’ position is sensible, given the
critical role that supervisory liability has played in ensuring that civil rights
violations are adequately deterred and that victims of egregious violations are
sufficiently compensated. It would strain the Court’s indulgence (and its Rules) to
enumerate the many varied instances in which the availability of liability for
4 District courts within the Fourth Circuit have also permitted supervisory liability claims where the supervisor did not directly participate in the violation, but where the supervisors knew of and remained indifferent to the violations by their subordinate. See Mitchell v. Rappahannock Regional Jail Auth., 703 F. Supp. 2d 549 (E.D.Va. 2010) (Eighth Amendment violations); Massenburg v. Adams, 08 Civ. 106, 2010 WL 1279087 (E.D. Va. Mar. 31, 2010) (religious exercise case).
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supervisors has proven important to deterrence and compensation, so this brief will highlight only some of the relevant cases.
We start with the principle that deterrence and compensation are the recognized twin goals of both Bivens and Section 1983 litigation. The Bivens Court itself focused on the need for compensating the victims of wrongdoing. See Bivens, 403 U.S. at 396–97; id. at 410 (Harlan, J., concurring) (―For people in Bivens’ shoes, it is damages or nothing.‖). Subsequent to Bivens, the Court identified an interest in deterrence as another basis for the cause of action. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (―The purpose of Bivens is to deter individual federal officers from committing constitutional violations.‖); Carlson v. Green, 446 U.S. 14, 21 (1980) (―Bivens . . . in addition to compensating victims, serves a deterrent purpose.‖); Butz v. Economou, 438 U.S. 478, 505–06 (1978) (declining to provide absolute immunity to federal executive officials under Bivens because doing so would eviscerate deterrent effect).
Ensuring that supervisors are liable for their constitutional violations has historically been important to meeting both goals of civil rights damages litigation. When a plaintiff has suffered a constitutional injury caused by the conduct of both direct participants and supervisory officials, compensation from all parties is just and sometimes necessary to ensure a complete remedy. For instance, when a line officer has insufficient funds to compensate an injured plaintiff fully, a supervisor
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who is also culpable may be able to fill the gap. Moreover, there may be circumstances when line officers are not available to pay damages (e.g., because they cannot be identified or because of a lack of indemnification) but supervisors are. See, e.g., Brenes-Laroche v. Toledo Davila, 682 F. Supp. 2d 179, 186–88 (D. P.R. 2010) (subordinate officers removed their badges before using unlawful force to hide their identities).
Supervisors may also be more subject to the deterrent effect of individual liability and more important to deter, given their greater authority, greater institutional affiliation with their employing agencies, better access to information necessary to prevent constitutional violations, and their responsibility to ensure that line-officer staff are properly trained and supervised. See, e.g., Butz, 438 U.S. at 505–506 (emphasizing the importance of liability for high-ranking officials because they may exercise authority over subordinates with respect to ―a wide range of projects‖ and their ―greater power . . . affords a greater potential for a regime of lawless conduct‖); see also infra Part IV. Indeed, analogous to wellaccepted principles of common-law tort theory, supervisors are the ―cheapest cost avoider[s]‖ in the constitutional tort context. Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055, 1060 (1972); Stephen G. Gilles, Negligence, Strict Liability and the Cheapest Cost-Avoider, 78 Va. L. Rev. 1291 (1992); cf. Richard A. Posner, An Economic Analysis of Sex
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Discrimination Laws, 56 U. Chi. L. Rev. 1311, 1332 (1989) (―The most efficient method of discouraging sexual harassment may be by creating incentives for the employer to police the conduct of its supervisory employees, and this is done by making the employer liable.‖).
The importance of maintaining supervisory liability is reflected in the case law. Take as one example the well-documented problem of sexual abuse and rape in prisons. See, e.g., Allen J. Beck & Paige M. Harrison, Sexual Victimization in Prisons & Jails Reported by Inmates, 2008–09 (U.S. Dep’t of Justice, Bureau of Justice Statistics, 2010).5 Prisoners who have been victimized by such abuse often have limited remedies against the direct participants—if the direct participants are other detainees, they will likely be judgment proof, and if they are correction officers, they will likely not be indemnified by their employing agencies. See, e.g., N.J. Stat. Ann. §59:10-1 (state need not indemnify employee who committed ―intentional wrong‖); N.Y. Pub. Officers Law Art. 2 §17 (same).
In these circumstances, supervisors who violate the Constitution by exhibiting deliberate indifference to the risk that other inmates or prison employees will rape detainees are often the only wrongdoers who can be fully reached by the law. Under the Appellants’ formulation in the instant case, however, even supervisors who know of and acquiesce in rape of prisoners will not be held liable
5 Available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svpjri0809.pdf. 17

unless they participate directly in the rape or its planning. According to Appellants’ view, liability would be inappropriate in all of the following cases:
 When supervisors know of an officer’s history of sexual abuse but nonetheless assign him to posts with ―prolonged and unsupervised contact with female inmates, including the overnight shift in the sexual trauma unit.‖ Peddle v. Sawyer, 64 F. Supp. 2d 12, 18–19 (D. Conn. 1999).
 When supervisors know of multiple instances of sexual assaults by a line officer and are aware of his ―obsession‖ with a specific inmate but take no steps to intervene. Mitchell v. Rappahannock Regional Jail Auth., 703 F. Supp. 2d 549, 559–60 (E.D. Va. 2010).
 When supervisors know of a subordinate’s long history of sexual abuse of prisoners, take no action in response, and one even admits intentionally not investigating for fear of what an investigation would uncover. See White v. Ottinger, 442 F. Supp. 2d 236, 248–50 (E.D. Pa. 2006).
 When supervisors provide no formal training to most subordinates concerning sexual harassment or proper contact with inmates, allowing subordinates ―essentially [to do] as they please[],‖ notwithstanding a history of complaints about staff sexual misconduct. Hammond v. Gordon County, 316 F. Supp. 2d 1262, 1288–90 (N.D. Ga. 2002).
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 When a supervisor does nothing to protect a prisoner from a known risk of sexual assault other than to tell her to stay around her friends and ―do anything you have to do to protect yourself.‖ Ortiz v. Voinovich, 211 F. Supp. 2d 917, 924–26 (S.D. Ohio 2002), rev’d in part sub nom. Ortiz v. Jordan, 316 F. App’x 449 (6th Cir. 2009), cert. granted on other grounds, 130 S. Ct. 2371 (2010).
 When a sheriff who has already been put on notice by federal courts of his inadequate supervision and its contribution to two sexual assaults makes only minimal efforts to correct ―glaring‖ safety problems, fails to impose a serious threat of discipline for policy violations by staff, and fails to implement adequate training. Tafoya v. Salazar, 516 F.3d 912, 918–20 (10th Cir. 2008).
 When a supervisor is aware of past sexual misconduct allegations against a guard, believe the allegations are likely true and that it would be prudent to reassign the guard, yet does nothing to protect inmates from additional assaults. Riley v. Olk-Long, 282 F.3d 592, 595–96 (8th Cir. 2002).
 When a warden, knowing of a guard’s many incidents of sexual misconduct, nonetheless allows him to resume his duties notwithstanding admitted concerns about inmates’ safety and concerns about the guard’s ―continued use of poor judgment.‖ Id. at 596–97.
Even outside of the context of prison sexual abuse, supervisory liability claims have forced the exposure and examination—and, one can reasonably
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expect, the correction in many cases—of practices or omissions by higher-level officials that exposed prisoners to an excessive risk of harm. In these cases, supervisors and administrators are not held liable or potentially liable on a respondeat superior theory; rather, they are held responsible on the basis of their own deliberate indifference with regard to their ―superintendent responsibilities.‖ One need only look to Carlson v. Green, 446 U.S. 14 (1980), in which the Supreme Court made clear that Bivens provides a remedy for Eighth Amendment violations, for an example of a supervisory liability theory that would be cast aside by Appellants. After remand from the Supreme Court, the plaintiffs successfully argued that the medical director of the entire federal prison system could be liable for failing to remedy systemic deficiencies in prison medical care. See ClevelandPerdue v. Brutsche, 881 F.2d 427, 430–31 (7th Cir. 1989). Under Appellants’ direct-participation theory, Carlson and each of the following examples would no longer represent viable constitutional claims:
 When a warden who knows of pattern of excessive force fails to take steps to address it, adopts a ―hands-off‖ approach, discontinues the practice of videotaping certain guard conduct, and fails to read inmate complaints. Valdes, 450 F.3d at 1237–44; see also Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1396 (8th Cir. 1997) (another example of a supervisor who failed to take action notwithstanding history of excessive force).
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 When prison supervisors ignore a pattern of racial harassment by a subordinate. Curry v. Scott, 249 F.3d 493, 507–08 (6th Cir. 2001)
 When a warden is ―fully advised both of the inhumane conditions of [a disabled prisoner’s] confinement and the failure to provide him with needed therapy,‖ but neglects to take any remedial steps. LaFaut v. Smith, 834 F.2d 389, 394 (4th Cir. 1987) (Powell, J., sitting by designation) (cited with approval in Wilson v. Seiter, 501 U.S. 294, 303 (1991)).
Taken to its logical conclusion in the prison context, Appellants’ argument would also create a bizarre dichotomy between cases involving abuse by fellow inmates and abuse by guards. In inmate-abuse cases, supervisors might still be liable under Appellants’ theory because both supervisory and subordinate defendants would violate the Constitution in the same way—by failing to protect some inmates from others. See generally Farmer v. Brennan, 511 U.S. 825, 833 (1994). But in guard-abuse cases, supervisors would be shielded from liability because of their failure to participate in constitutional violations in the same way as their subordinates, despite their deliberate indifference to their subordinates’ abuse. This kind of distinction lacks support in law, logic, and policy.
Appellants’ argument, if accepted, would do real harm outside the prison context as well. There are many examples in the case law of supervisory-liability claims against police officers and others that serve the compensatory and deterrent
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purposes of civil rights litigation. Under Appellants’ view, there would be no liability:
 When a police chief fails to discipline officers for excessive force or to do anything to prevent unlawful force in the future and responds to a citizen’s many complaints about excessive force with a letter saying the complaints would not be sustained. See Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).
 When a police chief knows that a particular officer has been reprimanded for a constitutional violation, has been the subject of eight other complaints about violence in four years, but fails to provide any additional training or supervision. Williams v. Santana, No. 09-10198, 340 F. App’x 614, 2009 WL 2435053 (11th Cir. Aug. 11, 2009).
 When a supervisor knows of multiple incidents in which a subordinate used excessive force prior to his killing a suspect and responds to complaints ―callously and with apparent amusement.‖ Shaw v. Stroud, 13 F.3d 791, 799–801 (4th Cir. 1994).
 When supervisors joke about their subordinate’s propensity to use a Taser on citizens but nonetheless fail to train subordinates as to how to use the weapon properly. See Ramirez v. Jim Wells County, Tex., No. 09 Civ. 209, 2010 WL 2598304, at *2 (S.D. Tex. June 25, 2010) (plaintiff alleged that supervisors
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referred to subordinate as ―Taser Joe‖ and failed to train him in the use of his Taser gun).
 When school officials fail to train special education teachers and fail to hire qualified staff to work in special education teachers, despite awareness of physical abuse of special education student, including beating, slapping, and slamming into a chair. Preschooler II v. Clark County Sch. Bd. of Trustees, 479 F.3d 1175, 1182–83 (9th Cir. 2007).
 When supervisors approve without inquiry the retaliatory transfers of police officers who reported sex-based discrimination, even though the captain initiating the transfers is the principal alleged discriminator. Keenan v. City of Philadelphia, 983 F.2d 459, 462–63, 466–68, 472 (3d Cir. 1992) (upholding verdict in plaintiffs’ favor).
 Where supervisors are aware of ongoing harassment of female officers, including use of lewd language, placement of pornographic pictures in officers’ work desks, and destruction of officers’ work product, but take no action to investigate or stop the conduct. Andrews v. City of Philadelphia, 895 F.2d 1469, 1472–75, 1478–79 (3d Cir. 1990).
In sum, there are many examples in the case law of claims against supervisory officials that have played an important role in furthering the twin goals of Bivens and §1983 litigation—compensation and deterrence. Appellants’
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extreme view would prevent Bivens and §1983 from serving their purpose in many significant cases. IV. The United States Itself Has Recognized the Importance of Holding
Supervisors Accountable to Prevent Constitutional Violations. As part of its affirmative enforcement of constitutional standards through investigation of and litigation against state and local entities, the United States has recognized the importance of supervisory liability and has taken positions diametrically opposed to Appellants’ view here. Under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997a(a), the Department of Justice, through its Civil Rights Division (CRD), has statutory power to investigate and, where appropriate, institute civil actions to prevent state and local officials from violating the Constitution. In almost all actions instituted by CRD pursuant to this authority, the United States has relied on, inter alia, allegations of supervisory involvement identical to those it derides as legally insufficient in the instant case. For example, in a lawsuit against Nassau County and supervisory defendants, the United States alleged that the defendants violated the Eighth and Fourteenth Amendments by ―tolerat[ing] and condon[ing]‖ the use of excessive force against detainees, failing to train and supervise, failing to maintain adequate policies, failing to adequately investigate complaints and failing to discipline errant staff. See Compl. ¶16, No. 2:02-cv-02382, United States v. Nassau County
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(E.D.N.Y. Apr. 22, 2002).6 In a lawsuit against Columbus County, Georgia, the United States sought relief for violations of the Constitution caused by supervisory defendants’ failure to provide ―adequate staffing and staff training, and fail[ure] to develop and implement appropriate policies and procedures to safely operate the Jail.‖ See Compl. ¶14, United States v. Columbus Consol. City/County Government, No. 4:99-cv-00132 (M.D. Ga. Sept. 23, 1999).7 In a case against the State of Arizona, the United States relied upon a theory of supervisory liability where the defendants failed to provide adequate training and investigation of sexual misconduct by staff. See Mem. Opp. Defs.’ Mot. for Summ. J., United States v. State of Ariz., No. 97-cv-476 (D. Ariz. Nov. 25, 1998);8 see also Compl. ¶21, Johnson v. Fla., No. 87-cv-369 (M.D. Fla.) (United States alleged that supervisors violated substantive due process by failing to protect hospital patients from harm, by failing to supervise staff, and by failing to investigate abuse, inter alia).9
6 Available at http://www.justice.gov/crt/split/documents/Nassa_sher _comp.php.
7 Available at http://www.justice.gov/crt/split/documents/muscogeecomp .php.
8 Available at http://www.justice.gov/crt/split/documents/arizbrf.php. 9 Available at http://www.justice.gov/crt/split/documents/gpwcomp.php.
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Iqbal has not changed the United States’ litigating position. In United States v. Erie County, No. 09-cv-849, 2010 WL 2737131 (W.D.N.Y. July 9, 2010), the United States recently amended its complaint to add supervisory liability allegations that are based on the same theory that plaintiffs seek to pursue in this case. See Am. Compl ¶21, United States v. Erie County, No. 09 Civ. 849 (W.D.N.Y. July 23, 2010) (alleging that defendants disregarded known and serious risks of harm to detainees);10 id. at ¶22 (alleging that defendants ―have repeatedly failed to take reasonable measures to prevent staff from inflicting serious harm on inmates‖), id. at ¶23, 27, 31, 35 (alleging that subordinates’ unconstitutional conduct was caused by supervisors’ failure to adopt policies necessary to prevent such violations), id. at ¶24, 28, 32, 36 (failure to train allegations), ¶25, 29, 33, 37 (failure to discipline or supervise allegations). Thus, the United States seeks to hold Appellees to a standard it does not apply to itself.
Even when the United States is not a formal litigant, it has taken positions at odds with that of Appellants’ here. In the Ninth Circuit, CRD filed an amicus brief arguing that a district court improperly granted judgment as a matter of law on punitive damages, in part arguing that punitive damages, like supervisory liability, was necessary to ensuring adequate enforcement of civil rights laws. See Br. of United States as Amicus Curiae, Reed v. Penasquitos Casablanca Owner’s Ass’n,
10 Available at http://www.justice.gov/crt/split/documents/US_v_Erie_ AmendedComplaint_07-23-10.pdf.
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Nos. 08-55069, 08-55072, 08-55151, 381 F. App’x 674, 2010 WL 2232339 (9th Cir. June 2, 2010) (brief filed Nov. 6, 2008).11 The government drew a useful comparison between punitive damages and supervisory liability and adopted a standard for supervisory liability that is far broader than what the United States argues in its defensive posture in this case. See id. at 27–28 (citing law indicating that under 42 U.S.C. § 1983, ―supervisory inaction‖ can be reckless when defendant failed to act on knowledge of illegality). In so doing, the United States favorably cited the pre-Iqbal supervisory liability standard from the First Circuit, in which that court applied a deliberate indifference standard for supervisory liability in police misconduct. See id. at 27 (citing Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989), with approval). The Ninth Circuit ultimately agreed with the United States’ position. See Reed v. Penasquitos Casablanca Owner's Ass'n, Nos. 08-55069, 08-55072, 08-55151, 381 F. App’x 674, 2010 WL 2232339, at *2 (9th Cir. June 2, 2010). Indeed, the Ninth Circuit held that a defendant’s ―reckless indifference‖ was sufficient to entitle a plaintiff to punitive damages, and that a plaintiff could show such indifference by demonstrating that the defendant knew of unlawful conduct by subordinates and failed to take any action. Id.
11 Available at http://www.justice.gov/crt/briefs/reedbrief.pdf. 27

Several of CRD’s pre-litigation letters to state and local government agencies are also worth noting. These letters present CRD’s findings regarding constitutional violations and its recommendations for preventing their recurrence, and they reflect CRD’s recognition that supervisory oversight of governmental agency operations and staff is essential as a practical matter to preventing constitutional violations by lower-level officials. When such violations occur in a recurrent or systematic way, improved supervision is almost always an essential component of an effective remedy.
For example, when investigating the Mercer County, New Jersey Geriatric Center, CRD found widespread constitutional violations and recommended, among other remedial measures, meaningful training, investigation, and follow-up of incidents of abuse. See Letter from Ralph F. Boyd, Jr., Ass’t Attorney General, to Robert D. Prunetti, County Executive (Oct. 9, 2002) (findings letter).12 CRD similarly drew a link between inadequate supervision and unconstitutional conduct when investigating a Woodbridge, New Jersey facility. See Letter from Alexander Acosta, Ass’t Attorney General, to Hon. James E. McGreevey, at 3, 34–36 (Nov. 12, 2004)13 (findings with respect to Woodbridge Developmental Ctr.) (detailing
12 Available at http://www.justice.gov/crt/split/documents/ mercercounty.php.
13 Available at http://www.justice.gov/crt/split/documents/split_woodbridge _findings_nov11_04.pdf.
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minimal supervision and training recommendations to prevent unconstitutional harm); see also Letter from Ralph F. Boyd, Jr., Ass’t Attorney General, to Hon. James E. McGreevey, at 5 (Apr. 8, 2003)14 (findings with respect to New Lisbon Developmental Ctr.) (identifying lack of staff training and incident reporting as one cause of unconstitutional failure to protect from harm); Letter from Thomas E. Perez, Ass’t Attorney General, to Hon. Jack Markell, at 14 (Nov. 9, 2010)15 (findings with respect to the Del. Psychiatric Ctr.) (criticizing lack of investigation of incidents of abuse and lack of interventions to ―minimize or eliminate risks of harm‖). As CRD observed when investigating the Virgin Islands Police Department, ―[p]olicies and procedures are the primary means by which police departments communicate their standards and expectations to their officers,‖ and thus supervisory oversight and training is essential to remedying constitutional misconduct. Letter from Shanetta Y. Cutlar, Chief, Special Litig. Section, to Comm’r Elton Lewis, Virgin Islands Police Dep’t, at 2, 22–27 (Oct. 5, 2005).16
Outside of the Third Circuit, CRD has made similar findings, criticizing law enforcement officials who fail to provide policy guidance on use of force, fail to
14 Available at http://www.justice.gov/crt/split/documents/newlisbon_ finding_letter.pdf.
15 Available at http://www.justice.gov/crt/split/documents/DPC_findlet_1109-10.pdf.
16 Available at http://www.justice.gov/crt/split/documents/virgin_island_pd _talet_10-5-05.pdf.
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review incidents of abuse, and fail to train their officers. See Letter from Loretta King, Acting Ass’t Attorney General, to Raymond P. Fitzpatrick, Jr., Esq. [―Yonkers Letter‖], at 5, 17, 18, 30 (June 9, 2009)17 (investigation of Yonkers Police Dep’t); Letter from Thomas E. Perez, Ass’t Attorney General, to Hon. Andrew J. Spano, County Executive [―Westchester Letter‖], at 32–35 (Nov. 19, 2009)18 (findings with respect to Westchester County Jail) (detailing recommendations regarding changes in supervision necessary to prevent unconstitutional uses of force); Letter from Loretta King, Acting Ass’t Attorney General, to Martin N. Gusman, Orleans Parish Criminal Sheriff, at 5–6, 9–10, 24– 25 (Sept. 11, 2009)19 (findings with respect to Orleans Parish Prison Sys.) (providing recommendations on oversight remedies to prevent excessive use of force); Letter from Loretta King, Acting Ass’t Attorney General, to Hon. Chris Collins, County Executive, at 41 (July 15, 2009)20 (findings with respect to Erie County Holding Ctr. and Erie County Correctional Facility) (recommending oversight and training on use of force). As CRD has stated succinctly on numerous
17 Available at http://www.justice.gov/crt/split/documents/YonkersPD _talet_06-09-09.pdf.
18 Available at http://www.justice.gov/crt/split/documents/Westchester_ findlet_11-19-09.pdf.
19 Available at http://www.justice.gov/crt/split/documents/parish_findlet.pdf. 20 Available at http://www.justice.gov/crt/split/documents/Erie_findlet_ redact_07-15-09.pdf.
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occasions, supervisory oversight is ―critical‖ to ensure that subordinates’ conduct is consistent with constitutional standards. Yonkers Letter at 18; see also Westchester Letter at 7 (―To ensure reasonably safe conditions, officials must take measures to prevent the use of unnecessary and inappropriate force by staff.‖).
Thus, although the United States takes a contrary position here, it has consistently argued for a broad reading of supervisory liability in affirmative litigation, precisely because of the close link between supervisory inaction to unconstitutional conduct by subordinates.
CONCLUSION For the foregoing reasons, Appellants’ arguments regarding supervisory liability should be rejected and the district court’s decision affirmed.

Dated: December 8, 2010

Respectfully submitted,
s/ Claire Prestel Claire Prestel PUBLIC JUSTICE, P.C. 1825 K Street NW, Suite 200 Washington, DC 20006 (202) 797-8600 cprestel@publicjustice.net
Alexander A. Reinert Associate Professor of Law BENJAMIN N. CARDOZO SCHOOL OF LAW 55 Fifth Avenue, Room 938 New York, NY 10003 (212) 790-0403
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areinert@yu.edu Steven Banks John Boston THE LEGAL AID SOCIETY OF THE CITY OF NEW YORK PRISONERS’ RIGHTS PROJECT 199 Water Street New York, NY 10038 (212) 577-3530 JBoston@legal-aid.org Angus Love THE PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch Street, Suite 304 South Philadelphia, PA 19106 (215) 925-2966 alove@pailp.org
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CERTIFICATIONS AS TO TYPE-VOLUME LIMITATIONS, TYPEFACE AND TYPE STYLE, IDENTITY OF COPIES, AND VIRUS SCAN 1. I hereby certify that this brief complies with the type-volume limitation
of Federal Rule of Appellate Procedure 29(d) because it contains 6,893 words, which is less than one-half the maximum length authorized for a principal brief by Federal Rule of Appellate Procedure 32(a)(7)(B). In calculating the word count for this brief, I have excluded the corporate disclosure statement, table of contents, table of authorities, and certifications.
2. I further certify that this brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point font, Times New Roman style.
3. I further certify that the text in the electronic copy of this brief is identical to the text in the 10 paper copies of the brief filed with this Court and that the electronic version of this brief filed with the Court was scanned by a virus detection program, McAfee VirusScan Enterprise, version 8.7.0i, and found to contain no known viruses.
s/ Claire Prestel Claire Prestel
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CERTIFICATION AS TO BAR MEMBERSHIP I hereby certify that at least one of the attorneys whose names appear on this brief (specifically, Claire Prestel) is a member of the bar of this Court.
s/ Claire Prestel Claire Prestel
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CERTIFICATE OF FILING AND SERVICE I hereby certify that on December 8, 2010, the foregoing brief was served via the Court’s ECF system and overnight delivery service on the following persons: Barbara L. Herwig, Esq. and Howard S. Scher, Esq., Attorneys, Appellate Staff, Civil Division, Department of Justice, 950 Pennsylvania Avenue, NW, Room 7239, Washington, D.C. 20530-000; Baher A. Azmy, Esq., Seton Hall Law School, 833 McCarter Highway, Newark, NJ 07102-0000; Heather Colleen Bishop, Esq., Natalie J. Kraner, Esq., Aurora Frances Parrilla, Esq., David Marshall Reiner, Esq., R. Scott Thompson, Esq., Scott L. Walker, Esq., Catherine Weiss, Esq., and Kenneth H. Zimmerman, Esq., Lowenstein Sandler, 65 Livingston Avenue, Roseland, NJ 07068-0000, and Lawrence S. Lustberg, Esq., Gibbons, One Gateway Center, Newark, NJ 07102-5310. I further certify that 10 hard copies were sent to the Clerk via overnight delivery service.
s/ Claire Prestel Claire Prestel
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