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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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Gustavo VARGAS RAMIREZ,

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Plaintiff,

13 v.

14 UNITED STATES OF AMERICA,

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Defendant.

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) Case No.: ________________________ )

)

)

)

) )

COMPLAINT FOR DAMAGES

)

)

)

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INTRODUCTION

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1. Plaintiff Gustavo Vargas Ramirez was imprisoned for more than two months

19 after United States Border Patrol (USBP) unlawfully and arbitrarily arrested him. Mr. Vargas
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was driving to his art studio when he was taken into custody by the Anacortes Police
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Department (APD) in Anacortes, Washington, pursuant to an improper and baseless request by
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23 USBP.

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2. A routine traffic stop, arising from Mr. Vargas’s alleged failure to signal a left

25 turn, quickly turned into an immigration enforcement action when APD contacted USBP to

26
inquire about Mr. Vargas’s immigration status even though Mr. Vargas had a valid driver’s
27
license and automobile registration with proof of insurance.
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3. After Mr. Vargas refused to speak to a USBP agent on the phone at the scene of

2 the stop, that agent advised the APD officer to seize Mr. Vargas and transport him to the APD
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station until another USBP agent arrived. USBP ordered Mr. Vargas’s arrest despite having no
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reasonable suspicion, much less probable cause, to believe that Mr. Vargas had violated or was
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6 violating any law over which USBP had jurisdiction.

7

4. Once at the APD station, Mr. Vargas was locked up in a cold jail cell until the

8 USBP agent arrived from out of town. When the agent finally got there, he proceeded to
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aggressively interrogate Mr. Vargas despite the latter’s numerous requests to speak to a lawyer
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first. Eventually, the agent took Mr. Vargas into custody notwithstanding his lack of legal
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12 authority to do so.

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5. In a blatant effort to cover up its egregious racial profiling and unlawful

14 practices, USBP’s subsequent report of Mr. Vargas’s arrest is replete with fabricated details
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attempting to provide a justification for the arrest—details that contradict those found in two
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APD police reports of the incident. For instance, the USBP report falsely states that a USBP
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18 agent appeared at the scene of the traffic stop to help with interpretation and then took Mr.

19 Vargas into custody after he admitted he was from Mexico. No such request for interpretation

20 was ever made—and no agent ever arrived on the scene. A USBP agent first spoke to Mr.
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Vargas in person at the APD station after Mr. Vargas had been ordered arrested by USBP.
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6. USBP eventually transferred Mr. Vargas to the Northwest Detention Center in
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24 Tacoma, Washington, where he remained imprisoned for over two months while removal

25 proceedings were initiated against him. These proceedings were subsequently closed, but the

26 arrest and detention have caused Mr. Vargas considerable professional, physical, and

27
psychological harm.
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7. Mr. Vargas brings this action under the Federal Tort Claims Act (FTCA), 28

2 U.S.C. §§ 1346(b) and 2671-2680, to vindicate his rights.
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JURISDICTION
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8. This action arises under the Constitution and laws of the United States, including
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6 the FTCA. This court has jurisdiction over the subject matter of this complaint pursuant to 28

7 U.S.C. §§ 1331 (federal question statute) and 1346(b) (United States as a defendant).

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EXHAUSTION

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9. Pursuant to 28 U.S.C. § 2675(a), Plaintiff submitted an administrative tort claim
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to Customs and Border Protection (CBP), the division of the Department of Homeland Security
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12 (DHS) of which USBP is a part, on March 12, 2013.

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10. CBP has failed to issue a final disposition within the required six-month period;

14 such failure is considered a denial of the claim. 28 U.S.C. § 2675(a). Plaintiff has thus

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exhausted all available administrative remedies and is filing this complaint in accordance with
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the FTCA.
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VENUE

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5. Venue in the U.S. District Court for the Western District of Washington is proper

20 under 28 U.S.C. § 1402(b). At all times relevant to this complaint, Plaintiff resided in Skagit

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County, Washington, which is within the jurisdiction of this court. In addition, the acts and
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omissions central to this complaint occurred in Skagit and Whatcom counties.
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PARTIES

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6. Plaintiff Gustavo Vargas is a resident of Skagit County, Washington. He is an

26 artist and a cook. He is Latino.
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7. Defendant United States of America is the appropriate defendant for claims

2 brought pursuant to the FTCA. 28 U.S.C. § 1346(b).

3
FACTS
4
Stop and Arrest
5

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9. On June 23, 2011, at or around 9:00 p.m., Mr. Vargas was on his way to his art

7 studio when he was stopped by APD Officer R.W. Leetz in Anacortes, Washington, for

8 allegedly failing to signal a left turn.

9
10.
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English.
11

Mr. Vargas speaks English and Spanish and he and Officer Leetz interacted in

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11. When prompted, Mr. Vargas provided Officer Leetz with his valid license, proof

13 of insurance, and automobile registration. Officer Leetz took these documents back to his car.

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12. According to Officer Leetz’s police report, while inspecting Mr. Vargas’s

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documents in his car, Officer Leetz noticed that the information associated with Mr. Vargas’s
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driver’s license provided a “000-00-0000” for his Social Security number.1
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13. In Washington State, drivers may obtain a driver’s license without providing a

19 Social Security number so long as they present adequate proof of state residence.2

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14. However, despite the fact that Mr. Vargas’s license was valid, Officer Leetz

21 contacted USBP to inquire as to Mr. Vargas’s immigration status.3
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15. The USBP agent who took Officer Leetz’s call advised the officer that he would
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24 call back after running Mr. Vargas’s name through the agency’s databases.4

25

26 1 Ex. A, Anacortes Police Report (June 23, 2011), at 2.
27 2 See, e.g., Wash. Rev. Code Ann. § 46.20.091; Wash. Admin. Code § 308-104-014(4). 3 Ex. A at 2.
28 4 Id.

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16. Officer Leetz informed the USBP agent that he could only wait for the return call

2 while he processed Mr. Vargas for the traffic infraction, “unless [USBP] specifically request[s] 3 me to detain [him].”5
4
17. According to the police report, the USBP agent purportedly called Officer Leetz
5
6 back before the latter completed the infraction process. The agent informed Officer Leetz that
7 USBP did not have any information on Mr. Vargas.6

8

18. When Officer Leetz asked the agent whether USBP wanted him to detain Mr.

9
Vargas, the agent asked Officer Leetz to put Mr. Vargas on the phone.7
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19. Mr. Vargas was making sketches in a notepad while waiting for Officer Leetz to
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12 return. Mr. Vargas did not feel free to leave—Officer Leetz had stopped him and still had his

13 documents—but he did not feel worried. All his documents were in order and he believed at

14 worse he would only receive a ticket.

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20. When Officer Leetz came back, however, he told Mr. Vargas that Border Patrol
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had some questions for him and held his cellular phone to Mr. Vargas’s ear.
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21. On the other end of the line, Mr. Vargas heard someone questioning him as to

19 where he was born and his immigration status.

20

22. The person did not identify himself beyond saying he was a USBP agent.

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23. Mr. Vargas responded clearly, and in English, that he would not answer any
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questions without a lawyer.
23

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24. Officer Leetz confirmed in his police report that Mr. Vargas refused to answer

25 any questions over the phone.8

26 27 5 Id.
6 Id. 28 7 Id.
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25. Upon hearing Mr. Vargas’s response, Officer Leetz took the phone and went

2 back to his car for several more minutes.
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26. Mr. Vargas did not understand what was happening or why Officer Leetz was
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delaying. Officer Leetz had not told him he was free to go, had not yet given him any sort of
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6 ticket, and had not returned his driving documents to him.

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27. Despite the fact that Mr. Vargas refused to answer any questions, the USBP

8 agent instructed Officer Leetz to detain Mr. Vargas, telling him that a USBP unit from
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Bellingham would meet them at the APD station.9
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28. When Officer Leetz finally returned to Mr. Vargas, he had Mr. Vargas’s driver’s
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12 license and other documents in a clear plastic bag. He directed Mr. Vargas to step out of the
13 vehicle and informed him that he was being detained at USBP’s request.10

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29. Mr. Vargas exited the car, and Officer Leetz handcuffed him, patted him down

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for weapons, and placed him in the back of the police vehicle.
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30. During this interaction Mr. Vargas told Officer Leetz that he would not speak to
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18 anyone without first speaking to an attorney.11

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Continued Arrest in Anacortes and Bellingham

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31. Once at the APD station, Officer Leetz locked Mr. Vargas up in a holding cell,

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where the latter waited for about 40 minutes until a USBP agent arrived.
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32. Officer Leetz demanded that Mr. Vargas take off his shoes prior to ordering him
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24 into the cell, such that Mr. Vargas was forced to enter the cell in socks. It was very cold. Mr.

25 Vargas asked Officer Leetz for a blanket, but the officer ignored him.

26 8 Id.
27 9 Id. 10 Id.
28 11 Id.
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33. Mr. Vargas was worried about the cold because he has suffered from health

2 problems and chronic pain for several years. At the time of his arrest, his doctor had detected
3
early symptoms of psoriatic arthritis; moreover, some ten years prior, Mr. Vargas had his right
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knee replaced because of a tumor. Over the years, he had seen several doctors for pain in his
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6 hands, feet, and joints. Mr. Vargas’s doctors had told him that the cold worsened these ills.

7

34. While in the APD cell, Mr. Vargas asked Officer Leetz if he could call someone

8 to pick up his car. Officer Leetz allowed him to do so. However, when he heard Mr. Vargas

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speaking Spanish, Officer Leetz demanded that Mr. Vargas only speak English, barking “No
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Spanish!”
11

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35. During this time, Mr. Vargas repeatedly asked for an attorney, but Officer Leetz

13 ignored his requests and did not give him the opportunity to contact one.

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36. Mr. Vargas felt frightened and distressed. He had never been arrested before,

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much less held in a cell. He felt he was being treated like a criminal, but he did not know what
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crime he was accused of having committed. He did not know what to do.
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37. After some time, a different officer appeared at the door of the cell. He did not

19 identify himself by name. On information and belief, that officer was USBP Agent John Orr.

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38. Agent Orr asked Mr. Vargas where he was born, how long he had been in the

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United States, and what his immigration status was.
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39. Mr. Vargas refused to answer any questions and instead requested to speak to a
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24 lawyer.

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40. Ignoring Mr. Vargas’s reply, Agent Orr continued interrogating him, asking him

26 the same questions over and over again. Mr. Vargas continued asking for an immigration

27
attorney.
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41. Mr. Vargas felt caged and outnumbered. He was afraid and intimidated by Agent

2 Orr’s aggressive and unrelenting questioning. He was cold and hungry, and he began to fear that

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he would remain arrested unless he gave Agent Orr the answers he seemed to want. Mr. Vargas
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did not believe he had the choice to stay silent.
5

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42. Agent Orr handcuffed Mr. Vargas and took him to the Bellingham Border Patrol

7 Station, where he was held overnight.

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43. Despite more persistent questioning in the Bellingham station, Mr. Vargas

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remained unresponsive, demanding instead the opportunity to speak to an attorney. The USBP
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agents ignored his numerous requests. They ran his fingerprints for background checks but
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12 found no criminal or immigration record for Mr. Vargas.

13

44. These agents attempted to pressure Mr. Vargas into signing some forms without

14 giving him adequate time to inspect them. When Mr. Vargas refused to sign, the agents put him
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in a cell but would periodically bring him out and try to get him to sign the forms. They would
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also periodically pound on his cell walls in what Mr. Vargas felt was an attempt to intimidate
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18 and coerce him to sign the forms. Mr. Vargas declined to sign all paperwork except for one

19 form in which he requested to see a judge in Tacoma.

20

45. USBP agents wrote up the arrest record, Form I-213 “Record of

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Deportable/Inadmissible Alien,” and the charging document, Form I-862 “Notice to Appear,”
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and served Mr. Vargas with a copy of both forms.
23

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46. Mr. Vargas asked about the possibility of posting bond, but the agents told him

25 that he did not qualify. Although the background checks they had run on Mr. Vargas had turned

26 up no criminal or immigration records, the agents told him he was in mandatory detention.
27

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47. A day after his arrest, on June 24, 2011, USBP agents transported Mr. Vargas—

2 shackled at the wrists and ankles—to the Northwest Detention Center in Tacoma, Washington,

3
where he was transferred to the custody of Immigration and Customs Enforcement (ICE), who
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thereafter initiated removal proceedings.
5

6

48. Mr. Vargas was in immigration detention for approximately 10 weeks until he

7 was finally permitted to post bond on September 1, 2011.

8

49.

9
2013.
10
50.
11

12

51.

Mr. Vargas’s removal proceedings were administratively closed on February 6,
There was no lawful basis to arrest and imprison Mr. Vargas. USBP did not have a warrant for Mr. Vargas’s arrest nor any reason to believe

13 that he was likely to escape before a warrant could be obtained.

14

52. USBP’s decision to arrest Mr. Vargas simply to investigate his alleged

15
immigration status and the methods it employed to do so were grossly improper and unlawful.
16
Consequences of the unlawful arrest and imprisonment
17

18

53. Mr. Vargas’s physical health worsened as a result of his arrest and imprisonment.

19 Before his arrest, Mr. Vargas had a history of health problems, including early symptoms of

20 psoriatic arthritis, but he had been managing his chronic hand, feet, and joint pain fairly well.
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His detention gravely exacerbated many of his health problems, however. After his release, for
22
example, Mr. Vargas’s doctor found that Mr. Vargas had begun to suffer from psoriatic
23
24 arthritis—something that had been a mere possibility before his arrest.

25

54. Mr. Vargas also sustained economic and professional harm, as he was unable to

26 participate in an important arts festival due to his unlawful arrest and confinement. Mr. Vargas

27
paints large oil canvases that he showcases and sells from his studio and at festivals and other
28

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1 community events. He had been invited to participate in the 2011 Anacortes Arts Festival,

2 which is held in the summer and was going to provide a valuable platform for him to feature his
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talent, grant a monetary stipend, and further hone his craft. The festival also offered Mr. Vargas
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with an opportunity to interact with youth interested in the arts as well as art lovers visiting the
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6 town. He was devastated when he missed the festival because of his arrest.

7

55. Moreover, Mr. Vargas lost his job as a result of his unlawful arrest and

8 imprisonment. He was only able to secure full-time employment more than nine months later;
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the job search was complicated by the fact that his chronic pain, which had worsened, limited
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his job prospects. Mr. Vargas was extremely stressed as he saw himself forced to spend his
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12 entire life’s savings in order to meet his needs during his unemployment.

13

56. His unfounded arrest and subsequent imprisonment have also caused Mr. Vargas

14 serious anxiety and depression. Mr. Vargas had never been detained or arrested before. The

15
experience deeply affected him and, since then, Mr. Vargas has had to receive regular
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counseling based on the post-traumatic stress he suffers.
17

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57. In fact, shortly after his release, Mr. Vargas went to see a doctor who noted that

19 he “presents with anxiety” and had symptoms that included “anxiety, difficulty concentrating,

20 excessive worry, insomnia, nervousness and sleep disruption” that were accompanied by
21 headaches and other physical pain.12 Subsequent reports note that Mr. Vargas’s anxiety and
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depression were “[i]n response to [his] June 2011 arrest and detention.”13 Such symptoms
23
24 continue to plague Mr. Vargas and he attends counseling regularly. Before his arrest he took

25 some medications for his physical ailments, but never for his emotional health; now he takes

26 medication for both and in greater quantities.

27 12 Ex. B, Sea Mar History & Physical Report # 20 (Oct. 3, 2011).
28 13 See Exs. C & D, Sea Mar History & Physical Report ## 21 (Oct. 25, 2011) and 22 (Nov. 22, 2011).

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58. Mr. Vargas suffered psychological, pecuniary, and physical harm as a result of

2 USBP’s decision to have him arrested and imprisoned simply so that it could investigate his
3
alleged immigration status. For more than two months, he was deprived of his freedom,
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separated from family, and prevented from working or attending school. He suffered specific
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6 injury to his profession as well as tremendous emotional damage and physical harm and, in fact,

7 continues to suffer both psychological and physical health complications as a result.

8

Fabricated I-213

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59. Mr. Vargas gave no information to Officer Leetz or to USBP that would
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constitute probable cause—or even reasonable suspicion—to believe that he had committed or
11

12 was committing an offense against the United States or was in the United Sates unlawfully.

13

60. Additionally, USBP had no warrant for Mr. Vargas’s arrest nor any reason to

14 believe that he would flee prosecution before a warrant could be obtained.

15
61. USBP thus lacked any legal basis for arresting Mr. Vargas, and certainly had no
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legal authority to advise Officer Leetz to arrest and transport him to the APD station.
17

18

62. Form I-213, “Record of Deportable/Inadmissible Alien,” is an arrest record filled

19 out by immigration authorities that also documents an alleged immigrant’s identity and

20 alienage. Mr. Vargas’s I-213 form, written on June 23, 2011 by USBP Agent Juan F. Reyes,
21
contains clear fabrications seeking to justify Mr. Vargas’s arrest.
22
63. First, the I-213 reports that Agent Orr was contacted by Supervisory Border
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24 Patrol Agent Wayne Hafstad to help with “a translation assistance request by Anacortes Police
25 Department.”14

26

27 28 14 Ex. E, Form I-213 (June 23, 2011), at 2.
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64. This claim contradicts Officer Leetz’s police report, which does not mention any

2 request for interpretation assistance, but instead documents that Officer Leetz contacted USBP 3 to inquire about Mr. Vargas’s immigration status.15
4
65. Moreover, Mr. Vargas speaks English and had effectively communicated with
5
6 Officer Leetz during the stop. Indeed, the traffic stop and infraction notice were all completed

7 without the presence, let alone the help, of any USBP agent or interpreter.

8

66. In addition, the police report documents that Officer Leetz advised USBP that he

9
could not detain Mr. Vargas unless USBP explicitly requested that he be detained—making it
10
clear why he was contacting USBP and plainly contradicting USBP’s claim that it was
11

12 contacted to provide interpretation assistance.

13

67. Second, the I-213 asserts that Agent Orr was patrolling in the city of Anacortes,

14 Washington, when he received the alleged interpretation request.16
15
68. To the contrary, Officer Leetz was informed by the USBP agent who advised
16
him to detain Mr. Vargas that “a unit was enroute [sic] to Anacortes from Bellingham.”17
17

18

69. Third, the I-213 also makes a patently false assertion that the USBP agent met

19 Officer Leetz “on scene at the intersection of 11th Street and Q Avenue.”18

20

70. That intersection is where Mr. Vargas allegedly made the signal-less turn—not

21
where Officer Leetz stopped him. Instead, he was stopped about four blocks from that
22
intersection, on the 900 block of 7th Street.19
23

24

71. Moreover, no USBP agent ever arrived on the scene.20

25

26 15 See Ex. A at 2. 16 Ex. E at 2.
27 17 Ex. A at 2. 18 Ex. E at 2.
28 19 Ex. A at 2; see Ex. F, Law Supplemental Narrative (Aug. 18, 2011), at 2.

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72. Fourth, the I-213 claims that Agent Orr questioned Mr. Vargas about his

2 “citizenship” after arriving and identifying himself as a USBP agent, and that Mr. Vargas
3
“stated that he was not going to answer any questions without the presence of an attorney” but
4
then strangely claims that Mr. Vargas “did state that he was born in Mexico and that he arrived
5
6 here approximately ten years ago; however he gave no further information.”21

7

73. This alleged concession at the scene of the traffic stop was, according to the I-

8 213, the basis for Agent Orr’s determination that he had sufficient evidence to arrest Mr. Vargas
9
and take him to the Bellingham Border Patrol Station “for further investigation and
10
processing.”22 Agent Orr concluded that, given the information he had purportedly obtained at
11
12 the scene of the stop, “further information was necessary in order to determine [Mr. Vargas’s]
13 current immigration status.”23

14

74. None of this ever happened, however, as the USBP agent did not appear at the

15
scene of the stop and Officer Leetz documented, and Mr. Vargas confirmed, that Mr. Vargas
16
categorically refused to talk with the USBP agent on the phone.24
17

18

75. The I-213 does acknowledge that any immigration and criminal checks made

19 with regard to Mr. Vargas by USBP while Mr. Vargas was stopped in his car demonstrated no

20 prior immigration or criminal history on record for him.25
21
76. Upon being made aware of the inconsistencies between the I-213 and Officer
22
Leetz’s police report, the APD Chief requested that Officer Leetz review the documents. In a
23
24 statement dated August 18, 2011, Officer Leetz attested to the accuracy and veracity of his

25 20 Ex. A at 2-3; see Ex. F at 2.
26 21 Ex. E at 2. 22 Id.
27 23 Id. 24 Ex. A at 2.
28 25 Ex. E at 2.
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1 original report and specifically confirmed that the USBP report incorrectly states that the USBP

2 agent arrived at the traffic stop and took custody of Mr. Vargas there.26
3
77. In his statement, Officer Leetz again clarified that the USBP agent on the phone
4
requested that he transport Mr. Vargas to the APD station, where the latter was held until
5
6 another USBP agent arrived, about one hour after Officer Leetz first stopped Mr. Vargas.27

7

FIRST CLAIM FOR RELIEF

8

Federal Tort Claims Act – False Arrest

9
78. Mr. Vargas re-alleges and incorporates by reference as if set forth fully herein
10
the statements above.
11

12

79. USBP has legal authority to briefly detain a person for questioning where its

13 agents have reasonable suspicion that the person “is, or is attempting to be, engaged in an

14 offense against the United States or is an alien illegally in the United States.”28
15
80. USBP also has legal authority to make a warrantless arrest of an immigrant if a
16
USBP agent “has reason to believe that the alien so arrested is in the United States in violation
17
18 of any . . . law or regulation [made in pursuance of law regulating the admission, exclusion,

19 expulsion, or removal of immigrants] and is likely to escape before a warrant can be

20 obtained.”29
21
81. USBP restrained and interfered with Mr. Vargas’s liberty of movement by a
22
show of force and by a showing of the agency’s authority when its agent advised Officer Leetz
23
24 to arrest Mr. Vargas, transport him to the local jail, and hold him in the APD station until a

25 USBP agent arrived, thereby procuring and instigating Mr. Vargas’s arrest; when Agent Orr

26 26 Ex. F at 2.
27 27 Id. 28 8 C.F.R § 287.8(b)(2).
28 29 8 U.S.C. § 1357(a)(2).
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1 interrogated Mr. Vargas in the APD cell and transported him to the Bellingham Border Patrol

2 Station; as well as when USBP agents interrogated him, forced him to undergo biometric

3
fingerprint analysis, held Mr. Vargas at the Bellingham Border Patrol Station overnight and
4
then transferred him in handcuffs and shackles to the custody of ICE.
5

6

82. USBP arrested Mr. Vargas without probable cause—without even reasonable

7 suspicion—to believe that he had or was engaged in the commission of an offense against the

8 United States.
9
83. Mr. Vargas was stopped for a minor traffic infraction. He had neither committed
10
a felony nor a misdemeanor constituting a breach of the peace, nor was there any indication he
11
12 was engaged in the commission of an offense against the United States.

13

84. Additionally, USBP did not have sufficient information to develop reasonable

14 suspicion, much less probable cause, to believe that Mr. Vargas was an immigrant unlawfully in

15
the United States. Mr. Vargas had a valid Washington driver’s license and did not provide
16
USBP with any information about his alleged immigration status.
17

18

85. Moreover, USBP arrested Mr. Vargas without a warrant and without any reason

19 to believe that Mr. Vargas would flee prosecution for any alleged violation of the law prior to

20 obtaining a warrant.

21
86. Thus, USBP procured Mr. Vargas’s arrest without legal authority, constituting a
22
violation of state tort law of false arrest.
23

24

87. Mr. Vargas suffered harm, including but not limited to, loss of liberty, severe

25 emotional distress, and invasion of privacy as a result of the false arrest to which he was

26 subjected by USBP.
27

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1

88. Defendant United States of America is liable for these acts and omissions under

2 the FTCA.
3

4

5

6

89.

SECOND CLAIM FOR RELIEF Federal Tort Claims Act – False Imprisonment Mr. Vargas re-alleges and incorporates by reference as if set forth fully herein

7 the statements above.

8

90. USBP intentionally confined Mr. Vargas when its agent advised Officer Leetz to

9
arrest and imprison him until a USBP agent arrived and Officer Leetz did so. USBP procured
10
and instigated Mr. Vargas’s imprisonment.
11

12

91. USBP continued to intentionally confine Mr. Vargas when Agent Orr transported

13 him to the Bellingham station, where he was kept overnight until they transferred him to ICE

14 custody at the Northwest Detention Center.

15
92. USBP’s intentional acts deprived Mr. Vargas of his freedom of movement,
16
restraining him and violating his personal liberty.
17

18

93. USBP did not have reasonable suspicion or probable cause to believe that Mr.

19 Vargas was in the United States unlawfully. Mr. Vargas had a valid Washington driver’s license

20 and at no point provided USBP or Officer Leetz with any information about his alleged

21
immigration status. Mr. Vargas, moreover, was not required to provide a Social Security
22
number in order to obtain a driver’s license in Washington State.
23

24

94. Additionally, USBP arrested Mr. Vargas without a warrant and without reason to

25 believe that Mr. Vargas would flee prosecution for any alleged violation of the law prior to

26 obtaining a warrant for his arrest.
27

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1

95. Furthermore, Mr. Vargas had neither committed a felony nor a misdemeanor

2 constituting a breach of the peace, and USBP had no reasonable cause or reason to believe that
3
Mr. Vargas had committed a felony or any offense against the United States. Mr. Vargas was
4
stopped because he allegedly failed to signal a left turn, which constituted a minor traffic
5
6 infraction.

7

96. Thus, USBP arrested and imprisoned Mr. Vargas without legal authority,

8 constituting a violation of state tort law of false imprisonment.
9
97. Mr. Vargas suffered harm, including but not limited to, loss of liberty, severe
10
emotional distress, and invasion of privacy as a result of the false imprisonment to which he
11
12 was subjected by USBP.

13

98. Defendant United States of America is liable for these acts and omissions under

14 the FTCA.
15

16

17

18

99.

THIRD CLAIM FOR RELIEF Federal Tort Claims Act – Negligent Infliction of Emotional Distress Mr. Vargas re-alleges and incorporates by reference as if set forth fully herein

19 the statements above.

20

100. USBP has a duty to act with reasonable care in exercising its arrest and detention

21
authority, including ensuring that it will only arrest individuals on suspected immigration
22
violations if it has a warrant or probable cause to do so and that it will not negligently inflict
23

24 emotional distress upon arrestees and individuals it investigates for suspected immigration law

25 violations.

26

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1

101. USBP breached this duty when it advised Officer Leetz to arrest Mr. Vargas

2 without any legal foundation for doing so, as it did not have reasonable suspicion or probable
3
cause to believe that Mr. Vargas was in the country unlawfully.
4
102. USBP continued to breach this duty when Agent Orr transferred Mr. Vargas to
5
6 the Bellingham Border Patrol Station; when USBP agents forced Mr. Vargas to undergo

7 biometrics fingerprint analysis; when USP agents kept Mr. Vargas imprisoned overnight and

8 used intimidating tactics in attempting to pressure him into signing immigration forms; and

9
when USBP agents transferred Mr. Vargas to ICE custody—lacking at all times reasonable
10
suspicion or probable cause to believe that Mr. Vargas was in the country unlawfully.
11

12

103. USBP’s breaches actually and proximately caused Mr. Vargas’s unlawful arrest

13 and imprisonment and the damage that resulted to him from them, including, but not limited to,

14 severe emotional distress.
15
104. Mr. Vargas suffered severe and long-lasting emotional distress, which is
16
supported by medical records documenting that Mr. Vargas routinely experienced “anxiety,
17
18 difficulty concentrating, excessive worry, insomnia, nervousness and sleep disruption”

19 accompanied by headaches and physical pain after being released from immigration detention—

20 and while in immigration detention as well.30 Mr. Vargas’s stress was brought about by, inter
21
alia, the indignation, shock, fear, and frustration at being arrested by USBP without
22
justification; by the way the Bellingham station USBP agents treated him while he was detained
23
24 there overnight; by the fact that he was unable to keep up with his medical and exercise

25 regimen, which he knew would (and did) worsen his physical illnesses; by the knowledge that

26 he could not participate in the Anacortes Arts Festival, which provided him with tremendous

27

28 30 Ex. B.

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1 professional prospects; and by the fact that he was locked up for almost 10 weeks and denied

2 the opportunity to interact with his family and friends and to continue to make a living.
3
105. This stress was exacerbated by his long search for a job after being released from
4
immigration detention and his need to spend his entire life’s savings to support himself during
5
6 that time.

7

106. USBP should have foreseen that its acts and omissions would result in the

8 unlawful detention of Mr. Vargas and cause him severe emotional distress. USBP knew that it
9
was not authorized to arrest someone without a warrant or probable cause that the person was in
10
the country unlawfully—in this case, USBP did not even have reasonable suspicion to justify
11
12 briefly detaining Mr. Vargas. Moreover, USBP agents knew that Mr. Vargas did not have a

13 prior criminal history, such that his contacts with law enforcement were minimal, and that arrest

14 and detention would be likely to cause someone unaccustomed to jails and detention severe
15
emotional distress.
16
107. Defendant United States of America is liable for these acts and omissions under
17
18 the FTCA.

19

FOURTH CLAIM FOR RELIEF

20

Federal Tort Claims Act – Intentional Infliction of Emotional Distress

21
108. Mr. Vargas re-alleges and incorporates by reference as if set forth fully herein
22
the statements above.
23

24

109. USBP’s conduct was both extreme and outrageous. Arresting someone without

25 any legal justification is intolerable in a civilized community governed by the rule of law. USBP

26 ordered the arrest of an individual it had no reasonable suspicion, much less probable cause, to

27
suspect of being in the country unlawfully, as certainly having a Latino/Latin American name
28

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1 and not having a Social Security number listed in a database that did not require the provision of

2 such a number could not constitute sufficient evidence to develop such reasonable suspicion or
3
probable cause. Moreover, the agency had various opportunities to correct its error—when
4
Agent Orr interrogated Mr. Vargas, when Mr. Vargas’s fingerprints were run and a background
5
6 check revealed no immigration or criminal history—yet did not do so. The agents’ tactics,

7 including attempting to pressure Mr. Vargas into signing immigration forms and creating the

8 fabricated I-213 form, evidence the unlawfulness of the arrest, USBP’s awareness of such
9
illegality, and the agency’s attempts to cover up its unlawful actions.
10
110. Mr. Vargas suffered severe emotional distress actually and proximately caused
11
12 by USBP’s unlawful actions. Mr. Vargas had never been arrested before; being handcuffed,

13 imprisoned, and shackled at the feet were extremely traumatizing and stigmatizing experiences

14 for him, causing him a deep sense of helplessness and much anger, frustration, humiliation, and
15
fright. The USBP agents’ actions while he was in the Bellingham Border Patrol Station—
16
forcing him to undergo biometrics fingerprint analysis in searching for evidence to support his
17
18 detention, pounding on the walls of his cell, forcing him out of his cell on repeated occasions to

19 try to coerce him to sign immigration forms they did not explain to him—compounded the

20 trauma Mr. Vargas was already experiencing.
21
111. Mr. Vargas’s severe and long-lasting emotional distress is supported by medical
22
records documenting that he continued to experience “anxiety, difficulty concentrating,
23
24 excessive worry, insomnia, nervousness and sleep disruption” accompanied by headaches and
25 physical pain even after his release from immigration custody.31 Mr. Vargas’s stress was

26 brought about by the fear, indignation, and shock of being arrested by USBP without

27

28 31 Id.

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1 justification; by his exacerbated health problems; by the knowledge that he could not participate

2 in the Anacortes Arts Festival; and by the fact that he was imprisoned for almost 10 weeks and

3
deprived of the opportunity to interact with his family and friends and to continue to make a
4
living.
5

6

112. The acts and omissions of USBP agents in arresting Mr. Vargas despite the fact

7 that they did not have reasonable suspicion—much less probable cause—to believe he was in

8 the U.S. unlawfully or that he had committed or was committing a felony or a misdemeanor

9
amounting to a breach of the peace, were committed with, at minimum, reckless disregard of the
10
probability of causing severe emotional distress.
11

12

113. Defendant United States of America is liable for these acts and omissions under

13 the FTCA.

14

FIFTH CLAIM FOR RELIEF

15
Federal Tort Claims Act – Abuse of Process
16
114. Mr. Vargas re-alleges and incorporates by reference as if set forth fully herein
17

18 the statements above.

19

115. USBP arrested and imprisoned Mr. Vargas without probable cause—in fact,

20 without even reasonable suspicion—to believe that Mr. Vargas was in the country unlawfully.

21
116. Instead of correcting this unlawful action, USBP agents misused the legal
22
processes available to them to cover up their unlawful conduct.
23

24

117. USBP Agent Orr prolonged Mr. Vargas’s unlawful arrest by transferring him to

25 the Bellingham Border Patrol Station to give the agency additional opportunity to find a

26 justification for the arrest.
27

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1

118. USBP agents in Bellingham placed Mr. Vargas through the biometrics

2 fingerprint system in seeking evidence to support his arrest and detention.
3
119. USBP agents in Bellingham attempted to pressure Mr. Vargas to sign
4
immigration forms without providing him with an explanation of what the forms were and
5
6 without giving him a proper amount of time to inspect them.

7

120. When these tactics failed to elicit the needed information to excuse the arrest,

8 USBP Agent Reyes crafted a fictitious account of USBP’s initial encounter with Mr. Vargas on
9
the I-213 form in order to provide a legal justification for Mr. Vargas’s arrest.
10
121. These agents acted with the improper purpose of covering up USBP’s unlawful
11
12 arrest and imprisonment of Mr. Vargas.

13

122. Mr. Vargas suffered harm, including but not limited to, loss of liberty, severe

14 emotional distress, and invasion of privacy as a result of the abuse of process to which he was
15
subjected by USBP.
16
123. Defendant United States of America is liable for these acts and omissions under
17
18 the FTCA.

19

20

PRAYER FOR RELIEF

21

WHEREFORE, Plaintiff respectfully requests relief as follows:

22
a. Trial by judge on all claims so triable.
23
b. Compensatory damages in an amount to be proven at trial.
24

25

c. Costs and reasonable attorney fees.

26

d. The right to conform the pleadings to the proof and evidence presented at trial.

27

e. Such other relief as the Court deems just and equitable.

28

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DATED: December 27, 2013

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By: s/ Matt Adams_____________ Matt Adams, WSBA No. 28287 Glenda Aldana Madrid, WSBA No. 46987 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone: (206) 957-8611 Fax: (206) 587-4025 E-mail: matt@nwirp.org E-mail: glenda@nwirp.org s/ Elizabeth Hawkins Elizabeth Hawkins, WSBA No. 43187 Bean Porter Hawkins PLLC 2200 Sixth Ave., Ste. 835 Seattle, WA 98121 Telephone: (206) 522-0618 Fax: (206) 524-3751 E-mail: ehawkins@bphlegal.com Attorneys for Plaintiff Gustavo Vargas Ramirez
Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 587-4009

Case 2:13-cv-02325-JLR Document 1 Filed 12/27/13 Page 24 of 24

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

11

AT SEATTLE

12
13 Gustavo VARGAS RAMIREZ,
Plaintiff,
14
v.
15
UNITED STATES OF AMERICA,
16
Defendant.
17

) Case No.: ________________________ ) ) EXHIBITS IN SUPPORT OF ) ) COMPLAINT FOR DAMAGES ) ) ) ) )

18

19 Exhibit Exhibit Name

Page Number

20 A
21
B
22
C
23
24 D

Anacortes Police Report, dated June 23, 2011

25

Sea Mar History & Physical Report #20, dated Oct. 3, 2011

29

Sea Mar History & Physical Report #21, dated Oct. 25, 2011

31

Sea Mar History & Physical Report #22, dated Nov. 22, 2011 33

25 E

Form I-213, dated June 23, 2011

35

26 F

Law Supplemental Narrative, dated Aug. 18, 2011

39

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6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 GUSTAVO VARGAS RAMIREZ,

CASE NO. C13-2325JLR

11

Plaintiff,

ORDER ON CROSS MOTIONS

FOR SUMMARY JUDGMENT

12

v.

13 UNITED STATES OF AMERICA,

14

Defendant.

15

I. INTRODUCTION

16

This matter comes before the court on Defendant United States of America’s

17 (“United States”) motion for summary judgment (Def. Mot. (Dkt. # 34) (sealed), (Dkt.

18 # 37 (redacted)) and Plaintiff Gustavo Vargas Ramirez’s (“Mr. Vargas”) motion for

19 partial summary judgment (Plf. Mot. (Dkt. # 44)). Having considered the submissions of

20 the parties, the balance of the record, and the relevant law, and having heard oral

21 argument, the court grants in part and denies in part both motions.

22 //

ORDER- 1

1

II. BACKGROUND

2

Unless otherwise noted, the following facts are undisputed. At approximately

3 9:00 p.m. on June 23, 2011, Officer Leetz of the Anacortes Police Department pulled Mr.

4 Vargas over in Anacortes, Washington, for failing to signal a left turn. (Aldana Decl.

5 (Dkt. # 36) Ex. 1 (“Leetz Dep.”) at 7:20-22; Aldana Decl. USAO000283-288 (“Leetz

6 Rep”).) Officer Leetz states that he had difficulty communicating with Mr. Vargas in

7 English at the scene of the traffic stop. (Leetz Dep. at 8:1-4; 26:20-27:7; Leetz Rep.)

8 Nonetheless, Officer Leetz was able to obtain Mr. Vargas’ driver’s license, registration,

9 and insurance. (Leetz Dep. at 8:1-4; 22:7-23; Leetz Rep.)

10

While processing Mr. Vargas’ documents, Officer Leetz noticed that the

11 Washington Department of Licensing database showed Mr. Vargas’ Social Security

12 number as all zeros. (Leetz Dep. at 8:5-14; Leetz Rep.) Officer Leetz was unaware that

13 Washington State drivers are not required to provide a Social Security number in order to

14 qualify for a license. (Leetz Dep. at 8:17-22.) Officer Leetz then called the United States

15 Border Patrol (“Border Patrol”). (Leetz Dep. at 37:11-25; Leetz Rep.) Officer Leetz

16 identifies two reasons he contacted Border Patrol: (1) he suspected Mr. Vargas’ presence

17 in the United States was not lawful because Mr. Vargas was not conversant in English

18 and because the database did not identify Mr. Vargas’ Social Security number, and (2) he

19 //

20 //

21 //

22 //

ORDER- 2

1 hoped that a Border Patrol agent who spoke Spanish could explain to Mr. Vargas how to 2 comply with the ticket.1 (Leetz Dep. at 9:1-7; 24:15-17; 29:16-30:5; 41:4-8.)

3

Officer Leetz reached Agent Hafstadt at the Border Patrol station in Bellingham,

4 Washington. (Hafstadt Dep. at 10:23-11:6.) Officer Leetz informed Agent Hafstadt that

5 he suspected Mr. Vargas was illegally present in the United States. (Leetz Dep. at 10:4-

6 14; Leetz Rep.) It is undisputed that Officer Leetz provided Agent Hafstadt with Mr.

7 Vargas’ name and date of birth, as well as the facts that there was no Social Security

8 number associated with Mr. Vargas’ driver’s license and that he was not conversant in

9 English. (Leetz Dep. at 8:5-9:7; 38:24-39:23; Hafstadt Dep. at 12:9-17.) There is

10 inconsistent testimony as to whether Officer Leetz provided Agent Hafstadt with

11 information regarding Mr. Vargas’ apparent ethnicity. (Leetz Dep. at 9:16-21, 10:1-3,

12 39:24-40:12; 84:3-23; Hafstadt Dep. at 12:7-17.)

13

Officer Leetz informed Agent Hafstadt that he could not detain Mr. Vargas any

14 longer than it took him to finish processing the traffic infraction unless specifically

15 requested to do so by Border Patrol. (Leetz Dep. at 9:9-15, 10:4-11; Leetz Rep.)

16 Because he believed that enforcing immigration laws was beyond his purview, Officer

17 Leetz intended to release Mr. Vargas without further questions unless Agent Hafstadt

18 called him back. (Leetz Dep. at 10:12-14; 24:1-2; 88:15-24.)

19

20

1 At the time, it was the occasional practice of Anacortes police officers to call Border Patrol to

21 request translation assistance, in part because Border Patrol provided a faster and less expensive
alternative to other translation services. (Leetz Dep. at 29:21-30:15.) That practice has since been

22

discontinued. (Id. at 79:2-80:14; Aldana Decl. Ex. 3 (“Hafstadt Dep.”) at 45:4-13, Ex. 6 (“Reyes Dep.”) at 50:3-9.)

ORDER- 3

1

Agent Hafstadt proceeded to run Mr. Vargas’ information through a series of

2 databases, none of which returned any records, with the exception of a record indicating

3 that Mr. Vargas possessed a driver’s license. (Hafstadt Dep. at 12:24-13:4; 15:19-19:2.)

4 Overall, the results of the search showed that Mr. Vargas (1) did not have any warrants

5 against him, (2) did not have a state or federal criminal history, (3) was not registered as

6 inspected or admitted to the United States while travelling, (4) had not previously been

7 deported, (4) had not had any sort of interaction with the immigration system, (5) had not

8 been issued an employment authorization card, (6) did not have an immigration case

9 pending, (7) had not filed an application for lawful status, (8) had not entered the United

10 States at a port of entry, and (9) had not previously been arrested by immigration

11 authorities. (Id. at 15:19-19:3.)

12

After running the background checks, Agent Hafstadt called Officer Leetz back

13 and informed him that he had no documentation of Mr. Vargas legally entering or

14 residing in the country. (Leetz Dep. at 11:20-12:3.) When Officer Leetz asked whether

15 he should detain or release Mr. Vargas, Agent Hafstadt asked to speak to Mr. Vargas.

16 (Id. at 12:4-6.) Officer Leetz switched his cell phone to speakerphone and held the phone

17 through the window of Mr. Vargas’ vehicle. (Id. at 12:10-24.) Agent Hafstadt does not

18 recall speaking with Mr. Vargas. (Hafstadt Dep. at 33:17-34:8.) Mr. Vargas recalls that

19 Agent Hafstadt asked him in English for his name, how long he had been in the United

20 States, and whether he had any documentation authorizing his presence in the country.

21 (Vargas Dep. (Dkt. # 44-2) at 49:10-50:18.) Mr. Vargas responded in English that he

22

ORDER- 4

1 would not answer any questions without a lawyer. (Id. at 50:6-15; Leetz Dep. at 13:2-12;

2 49:6-50:10.)

3

At that point, Officer Leetz pulled the phone back and resumed talking with Agent

4 Hafstadt. (Leetz Dep. at 49:20-50:10; Vargas Dep. at 50:19-23.) Officer Leetz asked

5 whether the agent wanted him to detain or release Mr. Vargas. (Leetz Dep. at 55:11-14.)

6 Agent Hafstadt instructed Officer Leetz to detain Mr. Vargas and transport him to the

7 Anacortes Police Department. (Id. at 13:13-14:10, 55:11-14; Leetz Rep.) Officer Leetz

8 recalls that Agent Hafstadt asked him to “[h]old on to him for us.” (Leetz Dep. at 55:14-

9 23.) Officer Leetz recalls that Agent Hafstadt told him that a Border Patrol agent would

10 come down from Bellingham to meet them at the Anacortes Police Department. (Id. at

11 56:4-22.) Agent Hafstadt, however, did not direct Officer Leetz how to detain Mr.

12 Vargas. (Id. at 58:16-59:3.)

13

Officer Leetz believed that Agent Hafstadt, as a member of the United States

14 Border Patrol, had the legal authority to detain Mr. Vargas to investigate his immigration

15 status. (Id. at 14:18-15:4; 16:4-8.) Accordingly, Officer Leetz had Mr. Vargas exit his

16 vehicle and advised him that he was being detained at Border Patrol’s request. (Id. at

17 59:10-15; Leetz Rep.; Vargas Dep. at 53:9-20, 54:14-19.) Officer Leetz then patted Mr.

18 Vargas down, placed Mr. Vargas in handcuffs, and drove him to the police station in the

19 patrol car. (Leetz Dep. at 14:11-13; Vargas Dep. at 57:5-11; 16:9-17.)

20

The police station is located approximately one mile from the site of the traffic

21 stop. (Leetz Dep. at 56:23-25.) At the station, Officer Leetz placed Mr. Vargas in a

22 holding cell, removed the handcuffs, confiscated Mr. Vargas’ shoes, and informed him

ORDER- 5

1 that a Border Patrol officer was on his way from Bellingham to Anacortes to interview

2 him. (Vargas Dep. at 55:23-56:13, 57:15-17; Leetz Dep. at 16:18-17:8.)

3

In the meantime, Agent Hafstadt contacted Agent Orr, who was driving a patrol

4 car in Bellingham, and asked him to interview a person being held at the Anacortes

5 Police Department regarding his immigration status. (Aldana Decl. Ex. 4 (“Orr Dep.”) at

6 12:1-18, 13:17-19.) Bellingham, Washington, is located approximately 40 miles from

7 Anacortes, Washington. (See generally Orr Dep. at 34:1-4.) Agent Orr arrived at the

8 Anacortes Police Department about 30 to 40 minutes after he received the call from

9 Agent Hafstadt. (Id. at 17:7-14; see also Leetz Dep. at 67:10-14.) At the station, Officer

10 Leetz provided Agent Orr with Mr. Vargas’ driver’s license and explained to Agent Orr

11 that it was difficult to communicate with Mr. Vargas in English and that Mr. Vargas’

12 Social Security number came up in the Washington Department of Licensing database as

13 all zeros. (Orr Dep. at 18:6-16; 28:9-16.)

14

Agent Orr interviewed Mr. Vargas in an area outside the holding cell. (Leetz Dep.

15 at 69:17-22.) Because Agent Orr was not fluent in Spanish, the conversation took place

16 at least partly in English.2 (Orr Dep. at 20:25-21:11; 23:3-23; Leetz Dep. at 70:11-24.)

17 Mr. Vargas stated that at first he refused to answer any questions, but later relented

18 because he “felt scared and intimidated” and “was in a cold cell without heat and without

19

2 Agent Orr recalls that, because he perceived Mr. Vargas was less comfortable speaking in 20 English than in Spanish, the conversation took place partly in Spanish and partly in English. (Orr Dep.

at 20:25-21:11, 23:3-23.) Mr. Vargas, however, maintains that the entire conversation took place in

21 English. (Vargas Dep. at 60:16-21.) In general, the parties dispute Mr. Vargas’ proficiency in the
English language. Notwithstanding the Border Patrol agents’ perceptions, Mr. Vargas testifies that he has

22

completed multiple “English as a second language” classes at a community college, and as a result, is able to read and write in English and to converse fluently in English. (Vargas Dep. at 6:20-8:8.)

ORDER- 6

1 shoes and I was hungry, and I thought there was no other way.” (Vargas Dep. at 62:17-

2 63:1.) During the interview, Mr. Vargas admitted that he had been borne in Mexico, that

3 he had been living in the United States for about ten years, and that he did not have any

4 immigration documents. (Orr Dep. at 20:1-7; Vargas Dep. at 60:12-15.) Mr. Vargas then

5 refused to answer any more questions without an attorney present. (Orr Dep. at 25:13-20;

6 Vargas Dep. at 62:15-20.)

7

With that information, Agent Orr called Agent Hafstadt to determine whether he

8 should bring Mr. Vargas to the Border Patrol station in Bellingham to check his

9 fingerprints in the immigration databases. (Orr Dep. at 27:5-17.) Agent Hafstadt agreed

10 that Agent Orr should check Mr. Vargas’ fingerprints, because the databases had not

11 returned any records corresponding to Mr. Vargas’ name. (Id.) At that time, Agent Orr

12 placed Mr. Vargas in handcuffs and drove him to the Border Patrol station in Bellingham.

13 (Id. at 32:10-20; Leetz Dep. at 73:4-6.) Agent Orr and Mr. Vargas left the Anacortes

14 police station at approximately 10:05 p.m. (Leetz Dep. at 67:4-16.)

15

By the time they reached the Border Patrol station about 40 minutes later, Agent

16 Orr’s shift was over, and the next shift of agents had arrived. (Orr Dep. at 34:1-13.)

17 Agent Orr briefed the supervisor, Russell Wynn, and another agent, Juan Reyes,

18 regarding Mr. Vargas’ detention, transferred Mr. Vargas to their supervision, and went

19 home. (Id. at 34:14-20; 35:5-7.) Agent Reyes procured Mr. Vargas’ fingerprints and

20 placed him in a holding cell. (Reyes Dep. at 11:10-16; 12:4-8.) Mr. Vargas was held at

21 the Bellingham Border Patrol station in a cell overnight. (Vargas Dep. at 72:1-6.) He

22 //

ORDER- 7

1 recalls that the cell was cold and had no heater, that he was not permitted to wear his

2 shoes, and that the agents brought him out of the cell several times during the night in

3 order to sign documents, but did not give him enough time to read the documents. (Id. at

4 69:4-72:19.)

5

That night, Agent Reyes filled out the paperwork required for the Mr. Vargas’

6 detention, including an I-213 Form. (Reyes Dep. at 11:18-12:23, 32:4-21.) An I-213

7 Form, titled “Record of Deportable/Inadmissible Alien,” is the form that immigration

8 officers use to record the biographical information of an apprehended alien and to

9 describe the details surrounding the alien’s detention. Hernandez-Guadarrama v.

10 Ashcroft, 394 F.3d 674, 676 (9th Cir. 2005). Agent Orr and Agent Wynn testified that, at

11 a shift change, it is customary for an on-duty agent to fill out paperwork on behalf of the

12 off-duty agent who interacted with an alien during the previous shift. (Orr Dep. at 35:15-

13 24; Aldana Decl. Ex. 7 (“Wynn Dep.”) at 11:16-12:4.) Agent Reyes testified that he

14 relied on information relayed to him by Agent Orr and his supervisors, as well as Officer

15 Leetz’s traffic citation, to fill out the form. (Reyes Dep. at 22:16-24:13, 24:22-25:5,

16 26:8-15.)

17

The I-213 form, however, contains some incorrect information. (Id. at 25:6-12.)

18 Most pertinently, the form falsely states that (1) Agent Orr was patrolling in Anacortes

19 when he received a call for translation assistance, (2) Agent Orr arrived at the scene of

20 Mr. Vargas’ traffic stop, (3) Mr. Vargas admitted at the stop that he was born in Mexico,

21 and (4) Agent Orr detained and transported Mr. Vargas directly from the traffic stop to

22 the Bellingham Border Patrol station. (Wynn Dep. at USAO000032-34 (“I-213 Form”).)

ORDER- 8

1 It is undisputed that these discrepancies are incorrect; they are belied by Officer Leetz’s

2 report and testimony, as well as Agent Orr’s testimony. (See Orr Dep. at 38:17-41:16;

3 see generally Leetz Dep.; Leetz Rep.)

4

Mr. Vargas brought five claims against the United States under the Federal Tort

5 Claims Act (“FTCA”): (1) false arrest, (2) false imprisonment, (3) abuse of process, (4)

6 negligent infliction of emotional distress, and (5) intentional infliction of emotional

7 distress. (See generally Compl. (Dkt. # 1).) The United States has moved for summary

8 judgment on all claims, and Mr. Vargas has moved for partial summary judgment with

9 respect to liability on the false arrest, false imprisonment, and abuse of process claims.

10 (See Def. Mot.; Plf. Mot.) Those motions are now before the court.

11

III. ANALYSIS

12 A. Summary Judgment Standard

13

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment

14 where the moving party demonstrates (1) the absence of a genuine issue of material fact

15 and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

16 317, 322 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The

17 moving party bears the initial burden of showing the absence of a genuine issue of

18 material fact. Celotex, 477 U.S. at 323.

19

If the moving party does not bear the ultimate burden of persuasion at trial, it can

20 show the absence of an issue of material fact in two ways: (1) by producing evidence

21 negating an essential element of the nonmoving party’s case, or (2) by showing that the

22 nonmoving party lacks evidence of an essential element of its claim or defense. Nissan

ORDER- 9

1 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving

2 party will bear the ultimate burden of persuasion at trial, it must establish a prima facie

3 showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc.,

4 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that,

5 if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473.

6

If the moving party meets its burden of production, the burden then shifts to the

7 nonmoving party to identify specific facts from which a factfinder could reasonably find

8 in the nonmoving party’s favor. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby,

9 Inc., 477 U.S. 242, 252 (1986). In determining whether the factfinder could reasonably

10 find in the nonmoving party’s favor, “the court must draw all reasonable inferences in

11 favor of the nonmoving party, and it may not make credibility determinations or weigh

12 the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

13 When adjudicating cross-motions for summary judgment, a court “evaluate[s] each

14 motion separately, giving the nonmoving party in each instance the benefit of all

15 reasonable inferences.” A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91

16 (9th Cir. 2006).

17

B. FTCA

18

The FTCA provides for a claim against the United States for the “wrongful act or

19 omission of any employee of the Government . . . under circumstances where the United

20 States, if a private person, would be liable to the claimant in accordance with the law of

21 the place where the act . . . occurred.” 28 U.S.C. § 1346(b)(1). To state a claim within

22 the FTCA’s limited waiver of sovereign immunity, a plaintiff must allege a wrongful act

ORDER- 10

1 by either (1) officers or employees of a federal agency, (2) “persons acting on behalf of a

2 federal agency in an official capacity,” or (3) by a government contractor over whose

3 “day-to-day operations” the government maintains “substantial supervision.”

4 Valadez-Lopez v. Chertoff, 656 F.3d 851, 858 (9th Cir. 2011) (citing 28 U.S.C. § 2671

5 and Letnes v. United States, 820 F.2d 1517, 1519 (9th Cir. 1987)). In assessing the

6 United States’ liability under the FTCA, courts apply the law of the state in which the

7 alleged tort occurred. Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006).

8 Accordingly, the United States’ liability in this case turns on whether Agents Hafstadt,

9 Orr, Reyes, and Wynn would be liable for their interactions with Mr. Vargas under 10 Washington State law.3

11 C. False Arrest and False Imprisonment

12

1. Washington false arrest and false imprisonment law

13

Under Washington law, the “gist of an action for false arrest or false imprisonment

14 is the unlawful violation of a person’s right of personal liberty or the restraint of that

15

16

3 As a member of the Anacortes Police Department, Officer Leetz is not an employee of a federal

agency. See Valadez-Lopez, 656 F.3d at 858. Nor is he an agent over whose day-to-day operations the

United States exercises supervision and control. See id.; Autery v. United States, 424 F.3d 944, 956-57
17 (9th Cir. 2005); see, e.g., Means v. United States, 176 F.3d 1376, 1377-78 (11th Cir. 1999) (finding that

the United States could not be held liable under the FTCA for the actions of local law enforcement

18 officers that executed a federal search warrant, notwithstanding the fact that the officers had been briefed

the morning before the search by Federal Bureau of Investigation (“FBI”) agents, because the FBI agents

19 did not control and supervise the local officials’ day-to-day operations). Nor does he fit into the third
category of “persons acting on behalf of a federal agency in an official capacity,” which has been

construed as covering “special situations such as the ‘dollar-a-year’ man who is in the service of the
20 Government without pay, or an employee of another employer who is placed under direct supervision of a

federal agency pursuant to contract or other arrangement.” Logue v. United States, 412 U.S. 521, 531

21 (1973); see also Rodriguez v. Sarabyn, 129 F.3d 760, 766 (5th Cir. 1997); Andrade ex rel. Goodman v.

United States, No. 05-3240PHXMHM, 2008 WL 4183011, at *4 (D. Ariz. Sept. 8, 2008). Therefore,

22 Officer Leetz’s actions alone are not a predicate for liability under the FTCA.

ORDER- 11

1 person without legal authority.” Bender v. City of Seattle, 664 P.2d 492, 499 (Wash.

2 1983). “A person is restrained or imprisoned when he is deprived of either liberty of

3 movement or freedom to remain in the place of his lawful choice.” Id. A person “may be

4 liable for false arrest or false imprisonment even if he or she is not the person who

5 physically restrains the plaintiff.” Id. at 500 n.3. Specifically, a person “who participates

6 in an unlawful arrest, or procures or instigates the making of one without proper

7 authority, will be liable for the consequences” if he or she has “taken some active part in

8 bringing about the unlawful arrest itself, by some ‘affirmative direction, persuasion,

9 request or voluntary participation.’” Id. (quoting W. Prosser, Torts § 11, p. 47 (4th ed.

10 1971)); see also Dunn v. Hyra, 676 F. Supp. 2d 1172, 1195-96 (W.D. Wash. 2009).

11 However, a lawful seizure—for example, an arrest pursuant to a valid warrant—is a

12 complete defense to a claim for false arrest. Hanson v. City of Snohomish, 852 P.2d 295,

13 301 (Wash. 1993); see also Bender, 664 P.2d at 499; McKinney v. City of Tukwila, 13 14 P.3d 631, 641 (Wash. Ct. App. 2000).4

15

2. Immigration officers’ authority

16

The authority of federal immigration officers to detain and arrest suspected aliens

17 is limited by the strictures of the Fourth Amendment. See Zepeda v. U.S. I.N.S., 753 F.2d

18 719, 725 (9th Cir. 1983). Specifically, an immigration officer is authorized to “briefly

19 detain a person for questioning” if the officer “has a reasonable suspicion, based on

20

21

4 Because the parties do not distinguish between Mr. Vargas’ false arrest and false imprisonment

claims, the court considers them together for the purposes of this motion. The court notes that, although

22

false arrest and false imprisonment claims may sometimes overlap, false imprisonment typically requires some type of confinement. See Kellogg v. State, 621 P.2d 133, 137 (Wash. 1980).

ORDER- 12

1 specific, articulable facts, that the person . . . is an alien illegally in the United States.” 8

2 C.F.R. § 287.8(b)(2). Similarly, an immigration officer is also authorized to arrest a

3 person if the “officer has reason to believe that the person to be arrested . . . is an alien

4 illegally in the United States,” a requirement which courts have equated with the

5 constitutional “probable cause” requirement. 8 C.F.R. § 287.8(c)(2); Tejeda-Mata v.

6 I.N.S., 626 F.2d 721, 725 (9th Cir. 1980); see also 8 U.S.C. § 1357(a)(1), (2) (authorizing

7 immigration officers to “interrogate any . . . person believed to be an alien as to his right

8 to be or to remain in the United States,” as well as to “arrest any alien . . . if he has reason

9 to believe that the alien so arrested is in the United States in violation of any such law or

10 regulation”). As such, the lawfulness of a Border Patrol agent’s seizure turns on the

11 familiar principles of reasonable suspicion and probable cause: if an agent detains a

12 person for a brief, investigatory stop, the stop must be supported by reasonable suspicion

13 that the person is unlawfully present in the United States, and if an agent arrests a person,

14 the arrest must be supported by probable cause that the person is unlawfully present in

15 the United States. See Orhorhaghe v. I.N.S., 38 F.3d 488, 497 (9th Cir. 1994); Tejeda-

16 Mata, 626 F.2d at 725; Zepeda, 753 F.2d at 725.

17

3. Detention or arrest

18

The applicable standard depends on whether Mr. Vargas’ initial traffic stop

19 remained an investigatory detention or morphed into an arrest. United States v. Bravo,

20 295 F.3d 1002, 1009 (9th Cir. 2002) (“At issue here is whether a ‘detention,’ which does

21 not require probable cause, evolved into an ‘arrest,’ which must be supported by probable

22 cause.”). Generally, a detention “involves no more than a brief stop, interrogation and,

ORDER- 13

1 under proper circumstances, a brief check for weapons.” United States v. Miles, 247 F.3d

2 1009, 1012 (9th Cir. 2001). “If the stop proceeds beyond these limitations, an arrest

3 occurs, which requires probable cause.” Id.

4

There is, however, “no bright-line rule to determine when an investigatory stop

5 becomes an arrest.” Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996).

6 “Rather, courts consider the totality of the circumstances, evaluating both the

7 intrusiveness of the stop as well as the justification for the use of such tactics . . . .” Id.

8 Specifically, “it is well-established that intrusive measures may convert a stop into an

9 arrest if the measures would cause a reasonable person to feel that he or she will not be

10 free to leave after brief questioning.” United States v. Guzman-Padilla, 573 F.3d 865,

11 884 (9th Cir. 2009). Nonetheless, intrusive measures are justified if they are a reasonable

12 response in light of the circumstances that prompted the stop or that developed during its

13 course. Id. at 885.

14

Ordinarily, whether an encounter constitutes a detention or an arrest is a mixed

15 question of law and fact. See United States v. Cormier, 220 F.3d 1103, 1110 (9th Cir.

16 2000); cf. United States v. Miles, 247 F.3d 1009, 1012 (9th Cir. 2001). Here, however,

17 the material historical facts are undisputed: At the time Agent Hafstadt instructed Officer

18 Leetz to seize Mr. Vargas, Mr. Vargas had already been subjected to a “brief stop [and]

19 interrogation” by Officer Leetz and Agent Hafstadt. Miles, 247 F.3d at 1012; (Leetz Dep.

20 at 7:20-22, 9:9-15, 10:4-11, 37:11-25; Vargas Dep. at 49:10-50:18.) Mr. Vargas was then

21 placed in handcuffs and transported from the site of the traffic stop to the Anacortes

22 police station in the back of Officer Leetz’s patrol car. (Leetz Dep. at 14:11-13; Vargas

ORDER- 14

1 Dep. at 57:5-11, 16:9-17.) At the police station, Mr. Vargas was confined in a holding

2 cell for approximately 30 to 40 minutes while waiting for an immigration officer to

3 arrive. (Orr Dep. at 17:7-14; see also Leetz Dep. at 67:10-14.) Once Agent Orr—who

4 was not conversant in Spanish—arrived, Mr. Vargas was interrogated a second time.

5 (Orr Dep. at 20:25-21:11, 23:3-23; Vargas Dep. at 62:17-63:1.) Overall, the seizure

6 lasted approximately one hour. (See Leetz Rep.; Leetz Dep. at 67:4-16.)

7

As discussed in detail below, Mr. Vargas’ seizure contains multiple hallmarks of

8 an arrest. Considering all of these factors together, the court concludes that the seizure

9 rose to the level of an arrest for the following reasons. First, although there is no rigid

10 time limitation on Terry stops, the duration of the seizure militates against the

11 requirement that a detention be “brief.” See United States v. Chamberlin, 644 F.2d 1262,

12 1266 (9th Cir. 1980) (holding that questioning a suspect in the back of a patrol car for

13 twenty minutes constituted an arrest because “longer detentions must be justified by the

14 traditional requirement of probable cause”); but see Gallegos v. City of L.A., 308 F.3d

15 987, 989 (9th Cir. 2002) (finding that detaining a suspect for 45 to 60 minutes to ascertain

16 his identity fell within the bounds of an investigatory stop because there was no “delay

17 unnecessary to the legitimate investigation”).

18

Second, “handcuffing is a substantial factor in determining whether an individual

19 has been arrested.” Bravo, 295 F.3d at 1010; see also United States v. Juvenile (RRA-A ),

20 229 F.3d 737, 743 (9th Cir. 2000) (“[W]e conclude that [the respondant’s] handcuffing

21 was the clearest indication that she was no longer free to leave and therefore find it to be

22 the point of arrest.”). Although handcuffing is not determinative when it is reasonably

ORDER- 15

1 necessary to ensure the safety of officers or the public, Bravo, 295 F.3d at 1010, there is

2 no indication that Officer Leetz feared or should have feared for his safety around Mr.

3 Vargas. (See Leetz Dep. at 16:9-17 (agreeing that he placed Mr. Vargas in handcuffs

4 because “that’s standard practice”).)

5

Third, although no bright-line rule determines where an investigatory stop crosses

6 the line and becomes an arrest, “a distinction between investigatory stops and arrests may

7 be drawn at the point of transporting the defendant to the police station.” United States v.

8 Parr, 843 F.2d 1228, 1231 (9th Cir. 1988); see Hayes v. Florida, 470 U.S. 811, 814-15

9 (1985) (“And our view continues to be that the line is crossed when the police, without

10 probable cause or a warrant, forcibly remove a person from his home or other place in

11 which he is entitled to be and transport him to the police station, where he is detained,

12 although briefly, for investigative purposes. We adhere to the view that such seizures . . .

13 are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally

14 be made only on probable cause.”); Dunaway v. New York, 442 U.S. 200, 216 (1979)

15 (“We accordingly hold that the . . . police violated the Fourth and Fourteenth

16 Amendments when, without probable cause, they seized petitioner and transported him to

17 the police station for interrogation.”)

18

Of course, “reasons of safety and security [may] justify moving a suspect from one

19 location to another during an investigatory detention.” Florida v. Royer, 460 U.S. 491,

20 504-05 (1983). The Ninth Circuit has clarified that moving a suspect does not

21 automatically turn a detention into an arrest “where the movement is a reasonable means

22 of achieving the legitimate goals of the detention given the specific circumstances of the

ORDER- 16

1 case.” United States v. Charley, 396 F.3d 1074, 1080 (9th Cir. 2005) (finding that it was

2 reasonable for officers to escort the defendant to her house to ascertain whether her

3 children were safe); Gallegos, 308 F.3d at 993 (finding it was reasonable for officers to

4 drive a suspect a few miles to the scene of the crime to verify with witnesses whether he

5 was the burglar).

6

A key difference between the detentions at issue in Charley and Gallegos and Mr.

7 Vargas’ seizure, however, is that Mr. Vargas was transported to the police station for

8 further questioning. See Hartfield v. Besner, No. 3:11-CV-00100-KI, 2012 WL 2788050,

9 at *6 (D. Or. July 9, 2012) (quoting Parr, 843 F.2d at 1231, Hayes, 470 U.S. at 816, and

10 Dunaway, 442 U.S. at 216). “Such involuntary transport to a police station for

11 questioning is sufficiently like arrest to invoke the traditional rule that arrests may

12 constitutionally be made only on probable cause.” Kaupp v. Texas, 538 U.S. 626, 630,

13 (2003) (internal punctuation omitted). Accordingly, the Ninth Circuit recognizes that

14 “the coerciveness created by isolating a suspect in a private space controlled by the

15 police” is a “crucial factor” in determining whether moving a suspect exceeds the bounds

16 of a Terry stop. United States v. Baron, 860 F.2d 911, 916 (9th Cir. 1988); see also

17 Orozco v. Cnty. of Yolo, 814 F. Supp. 885, 894 (E.D. Cal. 1993) (“Clearly, the

18 circumstances of the [plaintiffs’] detention became so coercive as to be indistinguishable

19 from a full-scale arrest when the officers transported the [plaintiffs] to the sheriff’s

20 station without their consent.”)

21

Fourth, “whether the police physically restrict the suspect’s liberty is an important

22 factor in analyzing the degree of intrusion effected by the stop.” Lambert, 98 F.3d at

ORDER- 17

1 1189. The Ninth Circuit has noted that once a person is locked in a holding cell, “no

2 reasonable person would have believed he was free to leave.” Bravo, 295 F.3d at 110-11

3 (quoting United States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000)); see also id. at 1017

4 (“We held that custody began when the defendant was placed in the locked cell and had

5 his shoes and belt taken.”).

6

Fifth, although Officer Leetz informed Mr. Vargas at the site of the traffic stop

7 that he was not under arrest (Leetz Dep. at 59:10-15), “[c]ertainly an officer cannot

8 negate a custodial situation simply by telling a suspect that he is not under arrest.”

9 Bravo, 295 F.3d at 1011; see also United States v. Lee, 699 F.2d 466, 467 (9th Cir.1982)

10 (per curiam) (holding that the defendant was in custody even though agents informed him

11 that he was “free to leave”).

12

Sixth, the fact that Agent Hafstadt and Officer Leetz maintain that they only

13 intended to detain Mr. Vargas in order to further investigate his immigration status does

14 not alter the legal analysis of whether their actions constituted an arrest. (See (Leetz Dep.

15 at 59:4-8; Hafstadt Dep. at 35:25-36:6; Orr Dep. at 6:17 (“Yeah, technically we don’t

16 arrest anybody. We detain.”).) Whether Mr. Vargas’ seizure “was an arrest or an

17 investigatory stop depends on what the officers did, not on how they characterize what

18 they did.” Gallegos, 308 F.3d at 992. “[W]here the defendant is transported to the police

19 station and placed in a cell or interrogation room he has been arrested, even if the purpose

20 of the seizure is investigatory rather than accusatory.” Gonzales v. City of Peoria, 722

21 F.2d 468, 477 (9th Cir. 1983) overruled in unrelated part by Hodgers-Durgin v. de la

22 Vina, 199 F.3d 1037 (9th Cir. 1999).

ORDER- 18

1

Finally, in Gonzales, the Ninth Circuit addressed a law enforcement policy that

2 purported to authorize seizures almost identical to Mr. Vargas’ seizure. See Gonzales,

3 722 F.2d at 477, overruled in unrelated part by Hodgers-Durgin, 199 F.3d 1037. The

4 Ninth Circuit held that when suspected aliens “are walked or driven to the police station

5 and held pending interrogation by the Border Patrol,” that “seizure constitutes an arrest,

6 and the constitutional standards cannot be avoided by labeling it a mere detention.”

7 Gonzales, 722 F.2d at 477, overruled in unrelated part by Hodgers-Durgin, 199 F.3d

8 1037.

9

Taking into account the totality of the circumstances described above, and

10 evaluating the intrusiveness of the seizure and the lack of justification for such tactics, the

11 court finds that Mr. Vargas’ detention evolved into an arrest. See Bravo, 295 F.3d at

12 1009.

13

4. Probable cause

14

Because Mr. Vargas’ seizure was an arrest, it was unlawful unless it was

15 supported by probable cause. United States v. Hernandez, 322 F.3d 592, 596 (9th Cir.

16 2003). In general, “[p]robable cause to arrest exists when officers have knowledge or

17 reasonably trustworthy information sufficient to lead a person of reasonable caution to

18 believe an offense has been or is being committed by the person being arrested.” Harper 19 v. City of L.A., 533 F.3d 1010, 1022 (9th Cir. 2008) (citing Beck v. State of Ohio, 379 20 U.S. 89, 91 (1964)). Whereas “conclusive evidence of guilt is of course not necessary 21 under this standard to establish probable cause, mere suspicion, common rumor, or even

22 //

ORDER- 19

1 strong reason to suspect are not enough.”5 Harper, 533 F.3d at 1022 (quoting United

2 States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (internal quotations omitted).

3

Although local law enforcement officers must find probable cause of criminal

4 activity before making an arrest, immigration officers may arrest solely on the basis of

5 unlawful presence in the United States. See Tejeda-Mata, 626 F.2d at 725; 8 U.S.C.

6 § 1357(a)(1), (2); Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012); United

7 States v. Garcia-Rivas, 520 F. App’x 507, 509 (9th Cir. 2013). Both probable cause and

8 reasonable suspicion are evaluated based on the “totality of the circumstances.” United

9 States v. Arvizu, 534 U.S. 266, 274 (2002). This process “precludes a ‘divide-and-

10 conquer analysis’ because even though each of the suspect’s ‘acts was perhaps innocent

11 in itself . . . taken together, they may warrant further investigation.’” United States v.

12 Valdes-Vega, 738 F.3d 1074, 1078-79 (9th Cir. 2013) (citing Arvizu, 534 U.S. at 274).

13

Whether an arrest is supported by probable cause is typically a mixed question of

14 law and fact. United States v. Hernandez, 322 F.3d 592, 596 (9th Cir. 2003); Tsao v.

15 Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012). Where the material historical

16 facts are undisputed, however, a court may decide the existence of probable cause or

17 reasonable suspicion as a matter of law. Tsao, 698 F.3d at 1146; Peng v. Mei Chin

18 Penghu, 335 F.3d 970, 979–80 (9th Cir. 2003); Harper, 533 F.3d at 1022.

19

20

5 Reasonable suspicion, on the other hand, “is a less demanding standard than probable cause.”

Gallegos, 308 F.3d at 990 (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). Reasonable suspicion

21 exists when an officer is aware of “specific, articulable facts which, together with objective and

reasonable inferences, form the basis for suspecting that the particular person detained is engaged in

22

criminal activity.” Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011); see also Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1445 (9th Cir. 1994); Orhorhaghe v. I.N.S., 38 F.3d 488, 497 (9th Cir. 1994).

ORDER- 20

1

Here, it is undisputed that Agent Hafstadt considered the following circumstances:

2 Mr. Vargas did not have a Social Security number associated with his Washington State

3 driver’s license; the Border Patrol databases did not have a record of any previous

4 interactions between Mr. Vargas and the United States’ immigration system; and Officer

5 Leetz suspected that Mr. Vargas was undocumented. (See Hafstadt Dep. at 12:9-17,

6 26:12-27:9; Leetz Dep. at 8:5-9:7, 38:24-39:23.) In addition, viewing the disputed

7 evidence in the light most favorable to the United States, see Reeves, 530 U.S. at 150, it

8 appears that Agent Hafstadt likely considered that: Mr. Vargas spoke English with a

9 Spanish accent and Officer Leetz found it difficult to communicate with him in English;

10 the traffic stop occurred in a town with an international ferry terminal and a maritime

11 border; a population of undocumented workers was believed to reside near Anacortes;

12 and Officer Leetz observed Mr. Vargas appeared to be “Mexican” or “Hispanic.”

13 (Hafstadt Dep. at 12:9-17, 26:12-27:9; Leetz Leetz Dep. at 8:5-9:7; 38:24-39:24-1; Plf. 14 Mot. at 6 n.3 (listing disputed factors).6

15

Although these factors are relevant to the probable cause determination, under

16 Ninth Circuit caselaw, many of these factors are minimally probative, even when viewed

17

18

6 In a footnote in his response brief, Mr. Vargas maintains that his refusal to answer Agent

Hafstadt’s questions “was not a legitimate factor the agent could consider in his reasonable suspicion

19 analysis.” (Plf. Resp. at 10 n.8 (citing I.N.S. v. Delgado, 466 U.S. 210, 216-17 (1984) (finding that “if the
persons refuses to answer and the police take additional steps . . . to obtain an answer, then the Fourth

Amendment imposes some minimal level of objective justification to validate the detention or seizure));
20 see also Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“[W]hen an officer, without reasonable suspicion

or probable cause, approaches an individual, the individual has a right to ignore the police and go about

21 his business.”). The United States does not contend that Mr. Vargas’ silence was a legitimate factor for

Agent Hafstadt to consider. (See generally Def. Mot.; Def. Resp.; Def. Reply.) Because the United

22

States does not address the issue, the court will not consider Mr. Vargas’ silence as a factor in the probable cause analysis.

ORDER- 21

1 in conjunction. See United States v. Manzo-Jurado, 457 F.3d 928, 935 (9th Cir. 2006)

2 (listing relevant factors); United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975)

3 (same). Considering the entirety of the circumstances, the court finds that, although these

4 factors may raise suspicion as to the legality of Mr. Vargas’ presence in the United

5 States, they do not give rise to probable cause. See Harper, 533 F.3d at 1022 (stating that

6 “even strong reason to suspect” criminal activity is not enough to establish probable

7 cause).

8

a. Language, appearance, and location

9

In United States v. Manzo-Jurado, the Ninth Circuit found that the facts that a

10 group of Hispanic-looking men appeared to be in a work crew, conversed with each other

11 in Spanish, did not understand English, and were located in close proximity to the 12 Canadian border did not give rise to even a reasonable suspicion that the group included 13 undocumented workers because the observed factors merely “form[ed] a broad profile 14 that would cover many lawful . . . immigrants.” 457 F.3d 928, 939 (9th Cir. 2006). The 15 Ninth Circuit held that “to establish reasonable suspicion, an officer cannot rely solely on

16 generalizations that, if accepted, would cast suspicion on large segments of the

17 lawabiding population.” Id. at 935. Mr. Vargas’ situation implicates similar factors as

18 those considered in Manzo-Jurado, and, hence, similar concerns.

19

Specifically, with respect to language ability, the Ninth Circuit found that the

20 information that the men spoke Spanish to each other and did not understand the agent

21 when he spoke English “while not dispositive, may support a finding of reasonable

22 suspicion when other factors suggest that the individuals stopped are present in this

ORDER- 22

1 country illegally.” Id. at 937. Accordingly, Mr. Vargas’ accented English supports a 2 finding of reasonable suspicion.7 However, it does so with somewhat less force than the

3 language difficulty identified in Manzo-Jurado: there, the men evinced no competency

4 in English, but here it is undisputed that Mr. Vargas communicated with at least Agent

5 Hafstadt in English. (See Leetz Dep. at 13:2-12, 49:6-50:10; Vargas Dep. at 50:6-15.)

6

Furthermore, “[s]tops based on race or ethnic appearance send the underlying

7 message to all our citizens that those who are not white are judged by the color of their

8 skin alone . . . and that those who are not white enjoy a lesser degree of constitutional

9 protection.” United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000) (en

10 banc); see also Melendres v. Arpaio, 989 F. Supp. 2d 822, 896 (D. Ariz. 2013) (“[In

11 general,] the race of an individual cannot be considered when determining whether an

12 officer has or had reasonable suspicion in connection with a Terry stop, including for

13 immigration investigation.”) Nonetheless, the Ninth Circuit has found that an

14 individual’s apparent Hispanic ethnicity may be “a relevant factor in the reasonable

15 suspicion inquiry” in areas sparsely populated by Hispanics, although it “cannot by itself

16 justify an investigatory stop.” Manzo-Jurado, 457 F.3d at 935; but see Montero-

17 Camargo, 208 F.3d at 1132 (9th Cir. 2000) (“The likelihood that in an area in which . . . a

18 substantial part of the population is Hispanic, any given person of Hispanic ancestry is in

19 fact an alien, let alone an illegal alien, is not high enough to make Hispanic appearance a

20

7 The parties put forth various evidence disputing Mr. Vargas’ proficiency in English. (See Plf.

21 Resp. (Dkt. # 39) at 15-16 (emphasizing that Mr. Vargas was able to communicate in English with both
Agent Hafstadt and Agent Orr, but conceding that he speaks English with a “heavy accent”); Def. Mot. at

22

7-9 (emphasizing Officer Leetz’strouble communicating with Mr. Vargas). For the probable cause analysis, however, the court considers only the facts known to Agent Hafstadt at the time of the arrest.

ORDER- 23

1 relevant factor in the reasonable suspicion calculus.”). The Ninth Circuit in Manzo-

2 Jurado found that apparent ethnicity was relevant where the population of the Montana

3 town was only 1.5% Hispanic. See Manzo-Jurado, 457 F.3d at 935. Census statistics

4 show that in 2010, 5% of Anacortes residents and 11% of Washington residents identified

5 as “Hispanic or Latino.” (Plf. Resp. at 12.) Therefore, the court concludes that this

6 factor, while relevant, is somewhat less probative than it was in Manzo-Jurado.

7

Lastly, in Manzo-Jurado, the Ninth Circuit found that the significance of the

8 suspected aliens’ proximity to the Canadian border was “not overriding here because the

9 record does not establish that [the locations], in particular, are locations notorious for

10 containing illegal immigrants.” Manzo-Jurado, 457 F.3d at 936. Here, the facts that

11 Anacortes is located approximately 60 miles from the Canadian border and receives

12 ferries arriving from Canada achieve relatively greater significance in light of the Border

13 Patrol agents’ testimony that Anacortes supports a population of undocumented workers.

14 See Hafstadt Dep. at 27:4-5 (“[T]here is a population of illegal aliens in the area.”), 53:6-

15 7 (“I believe illegal aliens . . . have utilized the ferry.”); Wynn Dep. at 56:20-23 (“Q:

16 Why do you say there is a large illegal immigration population? A: Because of the

17 amount of – this is a migrant community. We have seasonal farmers.”); but see Leetz

18 Dep. at 51:22-52:11 (testifying that Anacortes did not have a large immigrant population

19 and that he was unaware whether the migrant populations in nearby cities include a large

20 number of undocumented workers).

21

The significance is limited, however, by the fact that neither the Border Patrol

22 agents nor the United States provide any objective substantiation of the agents’ opinions.

ORDER- 24

1 (See Wynn Dep. at 56:17-19 (“Q: What is the number of illegal immigrants living in

2 Anacortes? A: I don’t know.”), 58:1-5 (“Q: So how many apprehensions were made there

3 in the past? A: I don’t have a number. Q: . . . [H]ow are you rating that as a large illegal

4 immigration population if you don’t have a number? A: It’s my opinion.”), 59:1-7

5 “A: . . . [I]n my own opinion, I believe that there is a higher immigration population

6 nationally within border communities. Q. . . . You don’t have any specific numbers to

7 Anacortes? A: No, I don’t have any numbers.”); Aldana Decl. Ex. # 5 (“U.S. Disc.

8 Resp.”) at 356-57 (declining to identify the suspected population of undocumented

9 workers in Anacortes and the number of undocumented people apprehended attempting

10 to enter the United States via Canada and/or the maritime Canadian border at Anacortes

11 in the last five years).) Although an agent may rely on experience to assess certain

12 factors, “permissible deductions, or rational inferences, must, however, flow from

13 objective facts and be capable of rational explanation.” Orhorhaghe v. I.N.S., 38 F.3d

14 488, 499 (9th Cir. 1994) (internal quotation marks omitted).

15

The significance of the location is further limited by Agent Hafstadt’s admissions

16 that he did not suspect that Mr. Vargas was arriving from the ferry terminal8 (Hafstadt

17 Dep. at 27:12-14) and that the location factors he identified were not specific to illegal

18 immigrants, but rather would apply to anyone found in the area, (id. at 29:7-8). See

19 Manzo-Jurado, 457 F.3d at 936 (“[A] location or route frequented by illegal immigrants,

20

21

8 Agent Hafstadt’s conclusion is supported by the fact that Mr. Vargas possessed a Washington

driver’s license and was driving a car registered in Washington, (Leetz Dep. at 8:1-4, 22:7-23; Leetz

22

Rep.), as well as the fact that the international ferries at Anacortes pass through a checkpoint managed by Customs and Border Protection officers (Hafstadt Dep. at 54:10-55:8).

ORDER- 25

1 but also by many legal residents, is not significantly probative to an assessment of

2 reasonable suspicion.”). Accordingly, the court concludes that, as in Manzo-Jurado, the

3 traffic stop’s proximity to the Canadian border is not overriding. See 457 F.3d at 936.

4

b. Border Patrol databases, Social Security number, and Officer Leetz’s

opinion

5

As the preceding analysis shows, if language, ethnicity, and location were the only

6 factors considered, under Manzo-Jurado the United States would be hard pressed to show

7 even reasonable suspicion. See id. Here, however, Agent Hafstadt considered additional

8 factors. Nonetheless, as discussed below, the court finds that these additional factors are

9 insufficient to raise the level of suspicion to that of probable cause.

10 First, the fact that the Washington State Department of Licensing database did not

11 associate a Social Security number with Mr. Vargas’ license is not necessarily, or even

12 probably, indicative of unlawful presence in the United States. Washington State does

13 not require individuals to provide their Social Security number in order to obtain a

14 driver’s license so long as state residency is proved. See, e.g., RCW 46.20.091; WAC

15 308-104-014(4). Moreover, as the United States admits, not all United States citizens

16 born in the United States have a Social Security number (Aldana Decl. Ex. 8 (“Resp. to

17 RFAs”) # 11), and not all foreign-born individuals lawfully in this country have a Social

18 Security number, see 20 C.F.R. § 422.104(a) (defining when lawfully admitted aliens are

19 eligible to receive a Social Security Number).

20 Second, Officer Leetz’s suspicion of illegal presence, although relevant, is not

21 entitled to great deference. See Manzo-Jurado, 457 F.3d at 934-35 (“[W]e will defer to

22

ORDER- 26

1 officers’ inferences only when such inferences rationally explain how the objective

2 circumstances aroused a reasonable suspicion that the particular person being stopped

3 had committed or was about to commit a crime.”) (quoting Montero-Camargo, 208 F.3d

4 at 1129) (internal punctuation omitted). As an Anacortes police officer, Officer Leetz

5 had not received any training specific to immigration law and in fact explicitly disavowed

6 any expertise on the subject. (Leetz Dep. at 20:13-15, 88:21-24.) Officer Leetz’s

7 suspicion was based only on Mr. Vargas’ language, appearance, and apparent lack of a

8 Social Security number—he did not ask Mr. Vargas any questions regarding his

9 immigration status. (Leetz Dep. at 20:3-9.) Officer Leetz, however, does not know that

10 Washington State did not require a Social Security number in order to obtain a driver’s

11 license (Leetz Dep. at 8:17-22), and as such his reliance on that factor was misplaced.

12 Beyond that, Officer Leetz’s assumption was based on nothing more than the broad

13 generalizations that are of little weight in the probable cause analysis. United States v.

14 Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002) (“[R]easonable suspicion may

15 not be based on broad profiles which cast suspicion on entire categories of people without

16 any individualized suspicion of the particular person to be stopped.”) (internal

17 punctuation omitted).

18

Finally, as the United States concedes, the fact that no record of Mr. Vargas

19 existed in the Border Patrol databases (aside from the record indicating that he possessed

20 a driver’s license) was not necessarily indicative of unlawful presence. (See Resp. to

21 RFA # 18.) With respect to immigration, the database search revealed that Mr. Vargas

22 had not previously been deported, received an employment authorization card, been

ORDER- 27

1 arrested by immigration authorities, filed an immigration application or petition,

2 registered as having entered the country at a port of entry, registered as inspected or

3 admitted to the United States, or been assigned an immigrant number. (Hafstadt Dep. at

4 15:19-19:3.) In addition, the database search revealed that Mr. Vargas did not have a

5 criminal record. Id.

6

These databases, however, did not include information on all individuals who

7 were born in the United States, on all foreign-born individuals in the United States, or, on

8 all individuals who are United States citizens by virtue of deriving or acquiring their

9 citizenship through a parent or grandparent who was born in the United States. (U.S.

10 Disc. Resp. at 351-52; see also Hafstadt Dep. at 25:15-26:11 (confirming that, absent a

11 criminal history, a citizen born in the United States would not appear in the database

12 records, and that a citizen who acquired citizenship through a parent or grandparent

13 would not be included in the database if he or she had never made an application for 14 citizenship).)9 For this reason, the United States concedes that “Mr. Vargas’ lack of an

15 immigration record or history was indicative of unlawful presence in the United States if

16 he was not born in the United States.” (Resp. to RFA # 18 (emphasis added).) At the

17 time of the traffic stop, however, Officer Leetz had not asked Mr. Vargas whether he was

18 an immigrant, where he had been born, or what his immigration status was. (Leetz Dep.

19 at 20:3-9). As such, at that point, the lack of records was “at least as consistent with [Mr.

20

21

9 (See also Reyes Dep. at 14:23-15:6 (“A: Well, if you're a US-born citizen, you’ve never had

any arrests, never had your fingerprints taken for anything, then, no, it probably wouldn’t show up on any

22 of those systems.”).)

ORDER- 28

1 Vargas’] legal presence in this country as with illegal alien status.” Orhorhaghe, 38 F.3d

2 at 499.

3

In Orhorhaghe, the Ninth Circuit found that the petitioner’s absence from the

4 immigration computer system “did not provide any additional basis for suspecting that

5 [the petitioner] was an illegal alien rather than a legal alien or American citizen” because

6 “no matter how perfect the database as to those entering the country, it would not reflect

7 the names of those born here.” 38 F.3d at 499. Those same concerns are implicated here,

8 although the court notes that the databases referenced in this case appear to be more

9 comprehensive than those at issue in Orhorhaghe. Taking this difference into account,

10 the court finds that the lack of database records on Mr. Vargas is a relevant, but by no 11 means overriding, factor in the probable cause analysis.10

12

c. Totality of the circumstances

13

The United States argues that Agent Hafstadt possessed reasonable suspicion that

14 Mr. Vargas was unlawfully present in the United States. (Def. Mot. at 11-13.) If that

15 were the question, the court would have to agree that the United States had made a strong

16 showing of reasonable suspicion. See Liberal, 632 F.3d at 1077. The United States does

17 not once contend, however, that Agent Hafstadt possessed probable cause to arrest Mr.

18

19

10 The court notes that Agent Hafstadt testified that, in his experience, it was a “remote”

possibility that someone not listed in the immigration databases would nonetheless have lawful status.
20 (Hafstadt Dep. at 26:3-9.) The Ninth Circuit, however, previously refused to rely on an immigration

officer’s testimony that “when you are unable to locate any record of an individual under their apparent

21 true names . . . nine times out of ten, the individual is, in fact, illegally present in the United States,”

because the objective facts showed that the databases contained gaps. Orhorhaghe, 38 F.3d at 499.

22 Similar concerns limit the persuasiveness of Agent Hafstadt’s testimony here.

ORDER- 29

1 Vargas at the time of the traffic stop. (See generally Def. Mot.; Def. Resp. (Dkt. # 38);

2 Def. Reply (Dkt. # 40).) Taking into account all of the factors discussed above, and

3 viewing the disputed facts in the light most favorable to the United States, Reeves, 530

4 U.S. at 150, the court agrees with the United States’ tacit admission that probable cause

5 was lacking. Many of the observed facts on which Agent Hafstadt relied, such as

6 ethnicity, language, location, and a driver’s license without a Social Security number,

7 merely implicated “generalizations that, if accepted, would cast suspicion on large

8 segments of the law-abiding population.” Manzo-Jurado, 457 F.3d at 935; see also

9 Sigmond-Ballesteros, 285 F.3d at 1121. Although the background search results call Mr.

10 Vargas’ presence in the United States into question, they fall short of establishing

11 probable cause because, absent an indication of Mr. Vargas birthplace or immigration

12 status, they are consistent with lawful immigration status. See Harper, 533 F.3d at 1022

13 (stating that “even strong reason to suspect” criminal activity is not enough to establish

14 probable cause). As such, the court concludes that, based on the totality of

15 circumstances, Agent Hafstadt did not have probable cause to arrest Mr. Vargas at the

16 time of the traffic stop.

17

5. Liability of the United States

18

Lack of probable cause alone, however, does not establish the United States’

19 liability on the false arrest and false imprisonment claims. See Bender, 664 P.2d. at 499.

20 Specifically, the United States contends that Agent Hafstadt requested Officer Leetz to

21 detain—not arrest—Mr. Vargas for further investigation, and that it was only Officer

22 Leetz’s subsequent actions, such as handcuffing Mr. Vargas, that turned the requested

ORDER- 30

1 investigative detention into an arrest. (Def. Mot. at 11-16; Def. Resp. at 2-3.) The

2 United States argues that Agent Hafstadt’s request was lawful because, at the time of the

3 traffic stop, Agent Hafstadt possessed a reasonable suspicion that Mr. Vargas was

4 unlawfully present in the United States. (Def. Mot. at 11-16; Def. Resp. at 2-3.) The

5 United States concludes that, because the United States cannot be held responsible for

6 Officer Leetz’s actions under the FTCA, and because Agent Hafstadt’s request for

7 detention was lawful, the United States cannot be found liable under the false arrest and

8 false imprisonment claims. (Def. Mot. at 11-16; Def. Resp. at 2-3.)

9

The United States is correct that it is only liable to the extent that its employee,

10 Agent Hafstadt, would be liable under Washington law. See Section III.B; 28 U.S.C.

11 § 1346(b)(1). The United States, however, misconstrues the extent to which Agent

12 Hafstadt is liable under Washington law.

13

In Washington, a person “may be liable for false arrest or false imprisonment even

14 if he or she is not the person who physically restrains the plaintiff.” Bender, 664 P.2d at

15 500 n.3. Specifically, a person “who participates in an unlawful arrest, or procures or

16 instigates the making of one without proper authority, will be liable for the

17 consequences” if he or she has “taken some active part in bringing about the unlawful

18 arrest itself, by some ‘affirmative direction, persuasion, request or voluntary

19 participation.’” Id. (quoting W. Prosser, Torts § 11, p. 47 (4th ed. 1971)); see also Dunn,

20 676 F. Supp. 2d at 1195-96. Under Bender, therefore, it is irrelevant that Agent Hafstadt

21 possessed reasonable suspicion to detain Mr. Vargas if Agent Hafstadt took “some active

22 part in bringing about” what was in fact his unlawful arrest. Id.

ORDER- 31

1

As discussed below, the facts regarding Agent’s Hafstadt’s participation in Mr.

2 Vargas’ arrest are almost entirely undisputed. The court finds that, even viewing the few

3 disputed facts in the light most favorable to the United States, a jury could not reasonably

4 conclude that Agent Hafstadt did not take “some active part” in Mr. Vargas’ arrest by

5 “some affirmative direction [or] request.” See Reeves, 530 U.S. at 150; Celotex, 477 U.S.

6 at 324; Anderson, 477 U.S. at 252; Bender, 664 P.2d at 500 n.3.

7

First, it is undisputed that Officer Leetz would not have detained Mr. Vargas after

8 the initial traffic stop absent Agent Hafstadt’s instruction to do so. (See Leetz Rep. (“I

9 advised him that I could only wait as long as it took me to complete my infraction, unless

10 they specifically requested me to retain Gustavo.”); Leetz Dep. at 9:12-13 (“But I told

11 him my intent was to complete the ticket and release Mr. Vargas-Ramirez . . . .”), 10:12-

12 14 (“Q: And you could only hold him as long as you needed to complete the traffic

13 infraction? A: Correct. Q: So you were only going to give him a ticket and let him go?

14 A: Correct.”).)

15

Second, Officer Leetz correctly understood that, as a local law enforcement

16 officer, he did not have the authority to detain Mr. Vargas solely for suspected unlawful 17 presence in the United States. (See Leetz Dep. at 20:19-24; 24:1-2.)11 Officer Leetz,

18

19

11 With certain limited exceptions that are inapplicable to the case at hand, state and local law

enforcement officers are not empowered to enforce federal civil immigration violations. Melendres v.
20 Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012). “[U]nlike illegal entry, mere unauthorized presence in the

United States is not a crime”; rather, an alien who is illegally present in the United States commits only a

21 civil violation. Id. at 1000; see also United States v. Garcia-Rivas, 520 F. App’x 507, 509 (9th Cir.

2013). Investigative stops under Terry, however, must be premised on criminality. Melendres, 695 F.3d

22

at 1000-01. Thus, the “law is clear that illegal presence in the country is not sufficient to support a finding of probable cause to suspect criminal activity.” Garcia-Rivas, 520 F. App’x at 509; see also

ORDER- 32

1 however, believed that Border Patrol had the legal authority to detain Mr. Vargas and to

2 request him to take Mr. Vargas into custody, and he testified that he relied on Border

3 Patrol’s perceived authority when he detained Mr. Vargas. (Id. at 14:18-15:4, 16:4-8.)

4

Third, whatever Agent Hafstadt’s subjective intentions, his request to Officer

5 Leetz necessarily implicated hallmarks of an arrest. Regarding Agent Hafstadt’s request

6 to detain Mr. Vargas, Officer Leetz testified:

7

A: The agent that I was on the phone with requested that I detain him.

8

Q. . . . And how did he ask you to detain him?

9

A. He asked me to detain him and transport him to our office, Anacortes

Police Department.

10

Q. Okay. And did the agent provide you with more specific instructions?

11

A. He said that . . . one of the agents would come down to Anacortes from

12

Bellingham to meet me at the Anacortes Police Department with Mr.

Vargas-Ramirez.

13

(Leetz Dep. at 13:16-14:1.) As such, Agent Hafstadt’s instructions to Officer Leetz

14

required Officer Leetz to transport Mr. Vargas from the traffic stop to the police station

15

for further interrogation, and to hold Mr. Vargas at the police station for 30 to 40 minutes

16

pending that interrogation. As discussed above in Section III.C.3, such actions are

17

usually definitive of an arrest.

18

//

19

20

21 Melendres, 695 F.3d at 1001. Accordingly, Mr. Leetz could not detain Mr. Vargas solely on his own

authority. See Garcia-Rivas, 520 F. App’x at 509 (finding that a law enforcement officer did not have

22

probable cause to detain an alien who admitted unlawful presence in the United States for suspected criminal activity).

ORDER- 33

1

Because the parties’ dispute what constitutes common law enforcement practice,

2 the court declines to find that Officer Hafstadt should have known that Mr. Vargas would

3 be placed in handcuffs during transport and in a cell while awaiting further questioning.

4 (See Leetz Dep. at 16:9-17:8; Orr Dep. at 32:16-25.) Further, the court acknowledges

5 that Agent Hafstadt did not exercise control over the specific actions Officer Leetz took

6 in effecting the requested detention. Nonetheless, the United States cannot escape the

7 reality that Officer Leetz would not have transported Mr. Vargas to the station and held

8 him there for 40 minutes had Agent Hafstadt not requested that he do so. In fact, absent

9 Agent Hafstadt’s request, Officer Leetz would have simply let Mr. Vargas go. Contrary

10 to the United States’ contention at oral argument, the fact that Officer Leetz could have

11 declined to heed Agent Hafstadt’s request is irrelevant when Officer Leetz chose to obey

12 it.

13

In sum, the court finds that these facts admit of only one reasonable conclusion:

14 Agent Hafstadt’s “affirmative direction [or] request” to detain Mr. Vargas played an

15 “active part in bringing about” Mr. Vargas’ unlawful arrest. See Bender, 664 P.2d at 500

16 n.3; Reeves, 530 U.S. at 150. Accordingly, summary judgment on the false arrest and

17 false imprisonment claims in favor of Mr. Vargas is appropriate. See Celotex, 477 U.S. at

18 324; Anderson, 477 U.S. at 252.

19

6. Mr. Vargas’ admission

20

Mr. Vargas contends that the United States’ liability on his false arrest claim

21 extends for the entire course of his detention, including the time that he spent at the

22 Bellingham Border Patrol station. (Plf. Resp. at 17.) This contention is incorrect because

ORDER- 34

1 it overlooks the fact that during his interview at the Anacortes police station Mr. Vargas

2 admitted to Agent Orr that he had been borne in Mexico, he had been living in the United

3 States for about ten years, and he did not have any immigration documents. (Orr Dep. at

4 20:1-7; Vargas Dep. at 60:12-15.) The knowledge that Mr. Vargas had been born outside

5 the United States, lacked immigration documents, and, per the Border Patrol databases,

6 had never been recorded as entering the country legally, gave rise to probable cause that

7 not only was Mr. Vargas was unlawfully present in the United States, but he had entered

8 the United States illegally. See Harper, 533 F.3d at 1022. As such, at the close of Agent

9 Orr’s interview, Border Patrol had legal authority to detain Mr. Vargas for further

10 investigation. See Tejeda-Mata, 626 F.2d at 725; 8 U.S.C. § 1357(a)(1), (2). Mr. Vargas

11 does not seriously contend otherwise. (See Plf. Resp. at 7 (conceding that the fact “no

12 record was found [in the Border Patrol databases] is not indicative of foreign birth or

13 unlawful status absent a concession of foreign birth”) (emphasis added). Because

14 probable cause is a complete defense to a false arrest claim, the United States’ liability

15 for false arrest ended with Mr. Vargas’ admission. See Hanson, 852 P.2d at 301.

16

Mr. Vargas argues that the court should not consider his admission because it

17 arose as a result of an unlawful seizure. (Plf. Resp. at 17.) In effect, Mr. Vargas asks the

18 court to apply the exclusionary principle to his civil tort claim.

19

The exclusionary rule and the closely-related “fruit of the poisonous tree” doctrine

20 prohibit admission of evidence obtained as a product of illegal searches and seizures.

21 United States v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004). The exclusionary rule,

22 however, is not a “necessary corollary of the Fourth Amendment.” United States v. Leon,

ORDER- 35

1 468 U.S. 897, 905-06 (1984). Rather, it is a “judicially created remedy designed to

2 safeguard Fourth Amendment rights generally through its deterrent effect, rather than a

3 personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S.

4 338, 354 (1974). Because the deterrent effect of applying the exclusionary rule in civil

5 cases is minimal and its cost is significant, as a general rule, evidence obtained in an

6 unlawful manner will not be excluded from civil proceedings. INS v. Lopez-Mendoza,

7 468 U.S. 1032, 1046 (1984); see also Kelly, 2013 WL 5770337, at *9 (noting that,

8 because the rule comes with “substantial social costs,” courts “rarely apply the

9 exclusionary rule in civil contexts”) (quoting Leon, 468 U.S. at 907-08).

10

Although the Ninth Circuit has yet to rule on this precise issue, numerous district

11 courts in this circuit, as well as three appellate courts in other circuits, have held that the

12 exclusionary rule is inapplicable in the context of civil tort claims. See Smith v. Kelly,

13 No. C11-623RAJ, 2013 WL 5770337, at *9-11 (W.D. Wash. Oct. 24, 2013) (holding that 14 the exclusionary rule was inapplicable to an action for false arrest).12 As such, courts

15

16

12 See also, e.g., Lindsey v. Wyatt, No. 02:10-CV-01437-HZ, 2013 WL 2319324, at *5 (D. Or.

May 27, 2013) (“Even if the search warrant obtained by the individual Defendants was based on false
17 statements or deliberate omissions, all of the evidence seized from Plaintiffs’ residence is admissible in

the context of these civil claims because the exclusionary rule . . . does not apply in subsequent civil

18 challenges.”); Davis v. United States, No. EDCV 07-0481-VAP OPX, 2010 WL 334502, at *21 n.26

(C.D. Cal. Jan. 28, 2010) (“Even if the shotgun was the fruit of an unlawful seizure, though, in a civil

19 proceeding like this one, there is no exclusionary rule which would bar the Government from introducing
it as evidence in a malicious prosecution lawsuit to establish probable cause.”); Lingo v. City of Salem,

No. 6:12-CV-01019-MC, 2014 WL 1347468, at *9 (D. Or. Apr. 4, 2014) (“[T]he consensus of the case
20 law is that neither the exclusionary rule nor the fruit of the poisonous [tree] doctrine apply to § 1983

cases.”); Fowler v. Calif. Highway Patrol, No. 13-CV-01026-TEH, 2014 WL 1665046, at *10 (N.D. Cal.

21 Apr. 25, 2014) (“[T]he exclusionary rule does not apply in the context of a civil suit under § 1983.”);

Townes v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999) (“The fruit of the poisonous tree doctrine

22

cannot link the unreasonable seizure and search to Townes’s conviction and incarceration because this evidentiary doctrine is inapplicable to civil § 1983 actions.”); Hector v. Watt, 235 F.3d 154, 160 (3d Cir.

ORDER- 36

1 addressing civil tort claims for false arrest have routinely considered evidence uncovered

2 by an initially unconstitutional search or seizure to determine whether probable cause

3 later arose during the course of that search or seizure. See, e.g., Lingo, 2014 WL

4 1347468, at *9-11 (holding that, even though the officers’ initial search was

5 unconstitutional, (1) the exclusionary rule did not apply to the officers’ subsequent

6 detection of marijuana and (2) summary judgment on the false arrest claim was

7 appropriate because the officers had probable cause to arrest the plaintiff once they

8 discovered the marijuana); Fowler, 2014 WL 1665046, at *10 (holding that officers’

9 unreasonable traffic stop did not preclude facts discovered during the stop from creating

10 probable cause to arrest the plaintiff); Lindsey, 2013 WL 2319324, at *5 (holding, in an

11 action for malicious prosecution, that evidence procured pursuant to an unconstitutional

12 search could be considered when evaluating probable cause to prosecute); McDaniel, 828

13 P.2d at 85 (upholding admission of evidence obtained by an unconstitutional search to

14 show probable cause regarding a false arrest claim); Kelly, 2013 WL 5770337, at *8

15 (“Once [the officer] seized the firearm and discovered [the plaintiff’s] felony record, he 16 had probable cause to lawfully continue his initially unlawful arrest of [the plaintiff].”)13

17

18 2000) (holding that the exclusionary rule is inapplicable to Section 1983 actions); Wren v. Towe, 130 F.3d
1154, 1158 (5th Cir. 1997) (same).

19

13 See also Radwan v. Cnty. of Orange, No. SACV 08-0786 AG, 2010 WL 3293354, at *11 (C.D.

Cal. Aug. 18, 2010) aff’d, 519 F. App’x 490 (9th Cir. 2013) (“[T]he Court may not rely on earlier
20 constitutional violations and the doctrine of the fruit of the poisonous tree to support a finding that the

search of the vehicle was a separate constitutional violation.”); Willis v. Mullins, No. 1:04-CV-6542 AWI

21 BAM, 2014 WL 1643578, at *3 (E.D. Cal. Apr. 24, 2014) (“[T]he fruit of the poisonous tree doctrine

does not carry over from criminal prosecution to civil Section 1983 suits so Defendants’ bad entry did not

22 disqualify later gathered evidence.”).

ORDER- 37

1

Not only that, but the Supreme Court has held that the exclusionary rule does not

2 apply to immigration hearings. See Lopez-Mendoza, 468 U.S. at 1046. The Ninth Circuit

3 has since established an exception to that ruling, and held that the exclusionary rule may

4 apply in an immigration proceeding if the case “involves an egregious Fourth

5 Amendment violation.” Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1448 (9th Cir. 1994).

6 Mr. Vargas has cited no authority to support his contention that the exception should be

7 extended to the context of a civil tort claim. (See generally Plf. Mot.; Plf. Resp.) Even if

8 the exception did apply in the context of civil tort claims, Mr. Lopez has not shown that

9 Agent Hafstadt’s and Agent Orr’s conduct rose to the level of a “bad faith constitutional

10 violation” necessary to trigger the exception. See id. at 1449 (finding an egregious

11 violation where officers stopped the petitioner “based solely on his Hispanic

12 appearance”). Specifically, there is no evidence that the agents deliberately violated the

13 Fourth Amendment. See Martinez-Medina v. Holder, 673 F.3d 1029, 1035 (9th Cir.

14 2011). Moreover, reasonable Border Patrol agents evaluating the range of factors and

15 equivocal doctrinal backdrop discussed in Section III.C.4 would not necessarily have

16 known that they lacked probable cause to arrest Mr. Vargas for unlawful status. See id.

17 Therefore, the egregiousness exception is inapplicable to this case.

18

For all of these reasons, the court declines to apply the exclusionary rule to Mr.

19 Vargas’ admission. Consequently, the United States’ liability for false arrest ended at the

20 time of that admission.

21 //

22 //

ORDER- 38

1 D. Abuse of Process

2

“Abuse of process is the misuse or misapplication of the process, after the

3 initiation of the legal proceeding, for an end other than that which the process was

4 designed to accomplish.” Saldivar v. Momah, 186 P.3d 1117, 1130 (Wash. Ct. App.

5 2008), as amended (July 15, 2008). To prove the tort of abuse of process, a plaintiff must

6 show both “(1) the existence of an ulterior purpose to accomplish an object not within the

7 proper scope of the process, and (2) an act in the use of legal process not proper in the

8 regular prosecution of the proceedings.” Id. “[T]he crucial inquiry is whether the

9 judicial system’s process . . . has been misused to achieve another, inappropriate end.”

10 Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 699 P.2d 217, 220

11 (Wash. 1985) (quoting Gem Trading Co. v. Cudahy Corp., 603 P.2d 828, 832 n.2 (Wash.

12 1979)). However, “the mere institution of a legal proceeding even with a malicious

13 motive does not constitute an abuse of process.” Id. at 220-21 (quoting Fite v. Lee, 521

14 P.2d 964, 968 (Wash. Ct. App. 1974)) (internal punctuation omitted). Rather, “there

15 must be an act after filing suit using legal process empowered by that suit to accomplish

16 an end not within the purview of the suit.” Id. at 221 (quoting Batten v. Abrams, 626

17 P.2d 98, 990 (1981)).

18

Here, Mr. Vargas “limits his abuse of process claim to the issuance of the I-213

19 [form].” (Plf. Resp. at 18.) This form contains false information regarding Mr. Vargas’

20 initial encounters with Officer Leetz and Agent Orr. (See Orr Dep. at 38:17-41:16;

21 compare I-213 Form with Leetz Rep.; Leetz Dep.) Mr. Vargas contends that the Border

22 Patrol agents purposefully falsified the form’s narrative in order to obscure the fact that

ORDER- 39

1 Mr. Vargas had been unlawfully arrested. (See Plf. Mot. at 22-24.) For the reasons

2 explained below, the court finds that Mr. Vargas cannot bring an abuse of process claim

3 predicated solely on the issuance of the form.

4

The I-213 Form, which is titled “Record of Deportable/Inadmissible Alien,” is the

5 form that immigration officers use to record the biographical information of an

6 apprehended alien and to describe the details surrounding the alien’s detention.

7 Hernandez-Guadarrama, 394 F.3d at 676; see also Espinoza v. I.N.S., 45 F.3d 308, 309

8 (9th Cir. 1995), as amended on denial of reh’g (Jan. 12, 1995) (“The Form I–213 is

9 essentially a recorded recollection of a [Border Patrol agent’s] conversation with the alien

10 . . . .”). This form is usually admissible in removal proceedings as evidence of a person’s

11 immigration status. See Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012); see also

12 Espinoza, 45 F.3d at 31. “Absent any indication that a Form I-213 contains information

13 that is manifestly incorrect or was obtained by duress, the [Board of Immigration

14 Appeals] has found the Form to be inherently trustworthy and admissible as evidence.”

15 Sanchez, 704 F.3d at 1109; see also Espinoza, 45 F.3d at 311.

16

In Washington, the tort of abuse of process applies to “legal process, whether

17 criminal or civil.” Sea-Pac Co., 699 P.2d at 220. For purposes of this motion, the court

18 assumes without deciding that the tort also applies to administrative proceedings to

19 enforce United States immigration law. See Def. Mot. at 18 (conceding that the removal

20 proceedings initiated against Mr. Vargas constitute legal process); but see id. at 221

21 (finding that an abuse of process claim concerning proceedings before the National Labor

22 Relations Board was not cognizable under Washington law because “no process issued in

ORDER- 40

1 Washington courts”). Even under that assumption, Mr. Vargas’ claim fails as a matter of

2 law because he is unable to show a misuse of the immigration process that occurred

3 “after the initiation of the legal proceeding” against him. See Saldivar, 186 P.3d at 1130.

4

Removal proceedings are initiated when United States Customs and Immigration

5 Enforcement (“ICE”) files a Notice to Appear with the immigration court. 8 C.F.R.

6 § 1003.14 (“Jurisdiction vests, and proceedings before an Immigration Judge commence,

7 when a charging document is filed with the Immigration Court by [ICE].”);

8 Lazaro v. Mukasey, 527 F.3d 977, 980 (9th Cir. 2008) (“The Immigration Court's

9 jurisdiction vests ‘when a charging document is filed with the Immigration Court by the

10 Service.’”) (quoting 8 C.F.R. § 1003.14.); see also 8 C.F.R. § 1003.13 (“Charging

11 document means the written instrument which initiates a proceeding before an

12 Immigration Judge.”), § 1003.15 (establishing the requirements for the “contents of the

13 Notice to Appear for removal proceedings”). Here, Agent Reyes completed Mr. Vargas’

14 I-213 form on June 23, 2011, but ICE did not file the Notice to Appear with the 15 immigration court until July 2, 2011 (Def. Reply (Dkt. # 40) at 5).14 As Mr. Vargas

16 concedes, “[t]he charging document that initiated the removal proceedings was Form I-

17 862, Notice to Appear.” (Plf. Resp. at 18 n. 15.)

18

Mr. Vargas, however, cannot bring an abuse of process claim for acts that

19 occurred before the legal proceedings against him were initiated: “The gist of the action

20 is the misuse or misapplication of the process, after it has once been issued, for an end

21

22

14 ICE ultimately agreed to administratively close the proceedings against Mr. Vargas. (Admin. Close. (Dkt. # 34-6).)

ORDER- 41

1 other than that which it was designed to accomplish.” Loeffelholz v. Citizens for Leaders

2 with Ethics & Accountability Now (C.L.E.A.N.), 82 P.3d 1199, 1217 (2004), as amended

3 on denial of reconsideration (Mar. 2, 2004) (citing Batten, 626 P.2d at 990 (internal

4 punctuation omitted).) Specifically, “there must be an act after filing suit using legal

5 process empowered by that suit to accomplish an end not within the purview of the suit.”

6 Sea-Pac Co., 699 P.2d at 220. The mere fact that an I-213 form may be used as evidence

7 during the removal proceedings is insufficient to render it a part of the “legal process

8 empowered by” the removal proceedings. See id. Therefore, the act of issuing the I-213

9 form cannot be challenged under an abuse of process claim. See Ressy v. State, Dep’t of

10 Corr., 176 Wash. App. 1035, at *5 (2013) (finding that the filing of and failure to update

11 an allegedly false declaration did not give rise to an abuse of process claim because the

12 declaration pre-dated the parole violation proceedings at issue).15

13

The same result is reached even if, contrary to 8 C.F.R. § 1003.14, the issuance of

14 the I-213 form is considered to be act that officially initiated the removal proceedings

15 against Mr. Vargas. The Washington Supreme Court has made clear that “the mere

16 institution of a legal proceeding even with a malicious motive does not constitute an

17 abuse of process.” Sea-Pac Co., 699 P.2d at 221.

18

Finally, Mr. Vargas’ contention that the court should consider his claim in the

19 context of the overarching “immigration legal process” against him, which he believes

20 began with his interrogation and arrest, is untenable. “It is generally accepted that ‘the

21

22

15 Federal courts “may consider unpublished state decisions, even though such opinions have no precedential value.” Emps. Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 (9th Cir. 2003).

ORDER- 42

1 judicial process must in some manner be involved’ before a claim for abuse of process

2 will lie.” Oreskovich v. Eymann, 129 Wash. App. 1032, at *3 n.2 (2005) (quoting W.

3 Page Keeton et al., Prosser and Keeton on the Law of Torts § 121 at 898 (5th ed. 1984));

4 see also Sea-Pac Co., 699 P.2d at 220 (“[T]he crucial inquiry is whether the judicial

5 system’s process . . . has been misused to achieve another, inappropriate end.”) (emphasis

6 added). In this case, the Border Patrol agents’ actions to investigate Mr. Vargas do not

7 constitute or otherwise implicate the judicial system’s process, and as such do not form

8 the basis for an abuse of process claim. For all of these reasons, summary judgment on 9 Mr. Vargas’ abuse of process claim is appropriate.16

10 E. Intentional Infliction of Emotional Distress

11

To prevail on a claim for intentional infliction of emotional distress, a plaintiff

12 must show (1) extreme and outrageous conduct, (2) intentional or reckless infliction of

13

14

16 Even if issuing the I-213 form constituted legal process, Mr. Vargas’ abuse of process claim

would fail because he sets forth no evidence supporting his theory that the Border Patrol agents

15 intentionally falsified the information in order to cover up an unlawful arrest. As is common practice at

the Border Patrol station, Agent Reyes filled out the form on behalf of Agent Orr because Agent Orr’s

16 shift was over. (Orr Dep. at 35:15-24; Wynn Dep. at 11:16-12:4.) Agent Reyes’ testimony that the form
describes the facts as he understood them to be at the time is uncontroverted. (See Reyes Dep. at 27:7-25;

see also Wynn Dep. at 19:22.) Mr. Reyes testified that he based the form’s narrative on information
17 provided to him by Agent Orr, his supervisor, and the citation written by Officer Leetz (Reyes Dep. at

22:16-24:13), and that any discrepancies on the form were “basically just more mistake than anything

18 else, and confusion between the shift change.” (Reyes Dep. 38:12-19; see also id. at 39:16-18 (explaining

that he assumed the location stated on the traffic citation was the address Agent Orr reported to because

19 “[o]ur normal practice is to go where the officer is, not the station.”).) Mr. Vargas’ insinuation that, if
Agent Reyes did not intentionally falsify the form, then the other agents must have lied to Agent Reyes in

order to whitewash their actions (see Plf. Reply at 10-11) finds no support in the record before the court,
20 and as such appears to be based on sheer speculation. A “mere scintilla of evidence” is insufficient to

withstand a motion for summary judgment, because the factfinder “is permitted to draw only those

21 inferences of which the evidence is reasonably susceptible; it may not resort to speculation.” British

Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). Mr. Vargas raises, at best, a scintilla of

22

evidence to support his allegation that the Border Patrol agents intentionally falsified his I-213 form. Accordingly, for this reason also, summary judgment on the abuse of process claim is appropriate. See id.

ORDER- 43

1 emotional distress, and (3) an actual result of severe emotional distress. Kloepfel v.

2 Bokor, 66 P.3d 630, 632 (Wash. 2003). The elements of outrage are generally factual

3 questions for the jury. Sutton v. Tacoma Sch. Dist. No. 10, 324 P.3d 763, 769 (Wash. Ct.

4 App. 2014). However, a trial court faced with a summary judgment motion must “make

5 an initial determination as to whether the conduct may reasonably be regarded as so

6 ‘extreme and outrageous’ as to warrant a factual determination by the jury.” Id. (citing

7 Doe v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 167

8 P.3d 1193, 1204 (Wash. Ct. App. 2007)).

9

In Washington, “[t]he law intervenes only where the distress inflicted is so severe

10 that no reasonable person could be expected to endure it.” Saldivar v. Momah, 186 P.3d

11 1117, 1130 (2008), as amended (July 15, 2008). As such, any claim for intentional

12 infliction of emotional distress must be predicated on behavior “so outrageous in

13 character, and so extreme in degree, as to go beyond all possible bounds of decency, and

14 to be regarded as atrocious, and utterly intolerable in a civilized community.” Kloepfel,

15 66 P.3d at 632. For example, a court found extreme and outrageous behavior when a

16 man threatened to kill his former girlfriend, threatened to kill the man she was dating,

17 watched her home, called her home 640 times, called her work 100 times, and called the

18 homes of men she knew numerous times, forcing her to spend weekends away from

19 home to avoid him. See id. at 632. On the other hand, a court found that abducting a pet

20 cat from a front porch and killing it by setting it on fire with gasoline, while “deplorable,”

21 did not rise to level of “necessary severity” that constitutes extreme and outrageous

22 behavior. Womack v. Von Rardon, 135 P.3d 542, 545 (Wash. Ct. App. 2006).

ORDER- 44

1

Here, Mr. Vargas’ claim for intentional infliction of emotional distress is based on

2 two events: (1) his unlawful arrest and (2) the false information on the I-213 form. (Plf.

3 Resp. at 24.) Viewing the evidence in the light most favorable to Mr. Vargas, see Reeves,

4 530 U.S. at 150, the court finds that the Border Patrol agents’ actions were not

5 “so outrageous in character, and so extreme in degree, as to go beyond all possible

6 bounds of decency,” Kloepfel, 66 P.3d at 632. As discussed in the preceding section,

7 there is no evidence that the Border Patrol agents intentionally falsified information on

8 the I-213 form. See Section III.D. Moreover, the agents who detained Mr. Vargas did so

9 on the belief that they had reasonable suspicion to detain him for further investigation and

10 that therefore they were acting within their statutory authority. (Hafstadt Dep. at 35:25-

11 36:10; Orr Dep. at 27:15-28:4; Reyes Dep. at 15:7-23.)

12

Finally, there is no evidence that the agents treated Mr. Vargas during his

13 detention in a manner that would be “regarded as atrocious, and utterly intolerable in a

14 civilized community.” See Kloepfel, 66 P.3d at 632. Being held in a cold jail cell

15 without shoes (Vargas Dep. at 57:15-17, 62:24-63:1, 71:22-25), while being repeatedly

16 questioned about your immigration status (id. at 58:2-60:11) and instructed to sign

17 documents without adequate time to read them (id. at 69:4-71:16), while unpleasant, does

18 not rise to the level of “necessary severity” that constitutes extreme and outrageous

19 behavior. Womack, 135 P.3d at 261. As such, it is the court’s initial determination that

20 the Border Patrol agents’ conduct, even when viewed in the light most favorable to Mr.

21 Vargas, may not “reasonably be regarded as so ‘extreme and outrageous’ as to warrant a

22 //

ORDER- 45

1 factual determination by the jury.” Sutton, 324 P.3d at 769. Therefore, summary 2 judgment on this claim is appropriate.17

3 F. Negligent Infliction of Emotional Distress

4

A plaintiff may recover on a claim for negligent infliction of emotional distress by

5 proving negligent conduct, which consists of the familiar elements of duty, breach,

6 proximate cause, and harm, as well as that the resulting emotional distress is (1) within

7 the scope of foreseeable harm of the negligent conduct, (2) a reasonable reaction given

8 the circumstances, and (3) manifest by objective symptomatology. Schmidt v. Coogan,

9 335 P.3d 424, 430 (Wash. 2014); Kumar v. Gate Gourmet Inc., 325 P.3d 193, 205 (Wash.

10 Ct. App. 2014). A plaintiff, however, “may not base claims of negligence on alleged

11 intentional actions, such as excessive force or unlawful arrest.” Lawson v. City of Seattle,

12 No. C12-1994-MAT, 2014 WL 1593350, at *13 (W.D. Wash. Apr. 21, 2014) (granting

13 summary judgment on a negligent infliction of emotional distress claim predicated on the

14 intentional acts underlying the plaintiff’s false arrest claim); see St. Michelle v. Robinson,

15 759 P.2d 467, 470 (Wash. Ct. App. 1988) (“[T]he abuse was an intentional act, and the

16

17

17 Mr. Vargas’ intentional infliction of emotional distress claim is predicated on the same behavior as his false arrest, false imprisonment, and abuse of process claims. Mr. Vargas is entitled to

recover for emotional distress on his false arrest and false imprisonment claims. See, e.g., Gurno v. Town

18 of LaConner, 828 P.2d 49, 55 (Wash. Ct. App. 1992), opinion corrected (June 29, 1992). At oral

argument, Mr. Vargas’ counsel stated that, if he prevailed on his false arrest claim, Mr. Vargas did not

19 oppose the dismissal of his intentional and negligent infliction of emotional distress claims as duplicative.
The court agrees that Mr. Vargas’ allegations of intentional and negligent infliction of emotional distress

are subsumed by his false arrest claim, and that Mr. Vargas is not entitled to a double recovery for his
20 emotional distress. See Lawson v. City of Seattle, No. C12-1994-MAT, 2014 WL 1593350, at *11 (W.D.

Wash. Apr. 21, 2014) (citing Rice v. Janovich, 742 P.2d 1230, 1238 (1987) (finding error in jury

21 instruction allowing for “possibility of double recovery” on both assault and intentional infliction of

emotional distress claims predicated on the same conduct)). For this reason also, summary judgment is

22 appropriate on this claim.

ORDER- 46

1 resulting emotional distress was also intentionally inflicted as a matter of law. Therefore,

2 St. Michelle cannot state a cause of action for the negligent infliction of emotional

3 distress.”); see also Willard v. City of Everett, No. C12-0014 TSZ, 2013 WL 4759064, at

4 *2 (W.D. Wash. Sept. 4, 2013) (“A plaintiff may not base a claim of negligence on an

5 intentional act, like the use of excessive force.”); Nix v. Bauer, No. C05-1329Z, 2007 WL

6 686506 at *4 (W.D. Wash. Mar. 1, 2007) (“[A]llegations of intentional conduct cannot

7 support a claim of negligence.”) (citing Bolyes v. Kennewick, 813 P.2d 178 (Wash. Ct.

8 App. 1991)).

9

Here, Mr.Vargas’ negligent infliction of emotional distress claim is predicated on

10 the same intentional actions by United States Border Patrol agents that underlie his false

11 arrest and false imprisonment claims. As such, this claim is not cognizable under

12 Washington law, and summary judgment is appropriate on this claim.18 See St. Michelle,

13 759 P.2d at 470; Lawson v. City of Seattle, 2014 WL 1593350, at *13.

14

IV. CONCLUSION

15

For the foregoing reasons, the court GRANTS in part and DENIES in part the

16 United States’ motion for summary judgment (Dkt. # 34) and GRANTS in part and

17 DENIES in part Mr. Vargas’ motion for partial summary judgment (Dkt. # 44). Finally,

18

19
18 Mr. Vargas’ negligent infliction of emotional distress claim is predicated on the same behavior
20 as his false arrest, false imprisonment, and abuse of process claims. As previously discussed in Section
III.E at n.17, because Mr. Vargas can recover damages for emotional distress on his false arrest claim, his
21 negligent infliction of emotional distress claim is subsumed within that claim and therefore may be
dismissed as duplicative. See Lawson, 2014 WL 1593350, at *1 (citing Rice, 742 P.2d at 1238). For this
22 reason also, summary judgment is appropriate on this claim.

ORDER- 47

1 the court STRIKES the redacted version of Mr. Vargas’ motion for partial summary 2 judgment that was originally filed at Docket No. 35.19

3

Dated this 23rd day of March, 2015.

4

5

A

6

JAMES L. ROBART

7

United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

19 In light of the fact that an unredacted version of the same motion has now been filed at Docket No. 44, the previous version is now moot.

ORDER- 48

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 GUSTAVO VARGAS RAMIREZ,

CASE NO. C13-2325JLR

11

Plaintiff,

12

v.

13 UNITED STATES OF AMERICA,

14

Defendant.

ORDER ON MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

15

I. INTRODUCTION

16

Before the court is Defendant United States of America’s motion to dismiss or for

17 summary judgment. (Mot. (Dkt. # 15).) This is a civil rights case. Plaintiff Gustavo

18 Vargas Ramirez was stopped by a police officer in Anacortes, Washington in June, 2011,

19 for failing to signal a left turn. (Compl. (Dkt. # 1) ¶¶ 2, 9.) The stop led to questioning

20 and eventually detention after the police officer who stopped Mr. Vargas began to suspect

21 that Mr. Vargas was in the United States illegally. (Id. ¶¶ 2-3.) Mr. Vargas was

22 eventually arrested by a United States Border Patrol (“USBP”) agent and placed in

ORDER- 1

1 immigration detention, where he remained for over two months. (Id. ¶ 6.) After he was

2 released, Mr. Vargas filed this complaint against the United States, alleging claims for

3 false arrest, false imprisonment, negligent and intentional infliction of emotional distress,

4 and abuse of process. (Id. ¶¶ 78-123.) He claims that (1) his detention was illegal

5 because the detaining officers did not have a reasonable suspicion that he was in the

6 country illegally; and (2) his eventual arrest was illegal because the arresting officers did

7 not have probable cause that he was in the country illegally. (See generally Compl.) The

8 court has examined the complaint, the documents attached thereto, the submissions of the

9 parties, and the governing law, and concludes that the record is not sufficiently developed

10 for the court to determine as a matter of law if reasonable suspicion and probable cause

11 were present at the relevant times. Accordingly, the court DENIES the United States’

12 motion.

13

II. BACKGROUND1

14

On June 23, 2011, at around 9:00 P.M., Mr. Vargas was stopped by a police

15 officer for failing to signal a left hand turn. (Id. ¶ 9.) At the time of the stop, Mr. Vargas

16 was on his way to his art studio in Anacortes, Washington. (Id.) The police officer who

17 stopped Mr. Vargas was Officer R.W. Leetz of the Anacortes Police Department. (Id.)

18 Officer Leetz asked to see Mr. Vargas’ driver’s license, proof of insurance, and

19

20 1 The parties do not dispute many of the basic historical facts underlying this case for
21 purposes of this motion. (Mot. at 2.) For many of these facts, Defendant accepts the allegations in Plaintiff’s complaint as true as is required on a motion under Federal Rule of Civil Procedure
22 12(b)(6). (See id. (citing Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009)).)

ORDER- 2

1 automobile registration. (Id. ¶ 11.) Mr. Vargas provided these documents, and Officer

2 Leetz took them to his patrol car. (Id.)

3

Upon investigating these documents, Officer Leetz noticed that Mr. Vargas’

4 driver’s license had a social security number of “000-00-0000” associated with it. (Id.

5 ¶ 12.) In Washington, drivers may obtain a driver’s license without providing a social

6 security number as long as they present adequate proof of state residence. (Id. ¶ 13

7 (citing RCW § 46.20.091; WAC § 308-104-014(4)).) Nevertheless, Officer Leetz found

8 this suspicious and contacted USBP to inquire about Mr. Vargas’ immigration status. (Id.

9 ¶ 14.)

10

USBP began looking into the matter. In the meantime, Officer Leetz continued

11 processing the traffic stop. (Id. ¶¶ 16-17.) Before he finished, the USBP agent called

12 back and informed Mr. Leetz that USBP had searched several databases and had found

13 no information regarding Mr. Vargas’ immigration status or criminal history. (Id. ¶ 17.)

14 A USBP agent then spoke with Mr. Vargas on the phone, asking him questions about his

15 immigration status. (Id. ¶¶ 18-24.) Mr. Vargas responded that he did not want to answer

16 any questions without speaking to a lawyer. (Id. ¶ 23.)

17

The USBP agent then asked Officer Leetz to detain Mr. Vargas. (Id. ¶ 27.) The

18 agent told Officer Leetz that a USBP agent would meet Officer Leetz at the Anacortes

19 Police Station. (Id.) Accordingly, Officer Leetz returned to Mr. Vargas’ car, directed

20 Mr. Vargas to step out of his vehicle, and informed him that he was being detained at

21 USBP’s request. (Id. ¶ 28.) Mr. Vargas exited his car, and Officer Leetz handcuffed

22

ORDER- 3

1 him, patted him down for weapons, and placed him in the back of his patrol car. (Id.

2 ¶ 29.)

3

The two men then proceeded to the Anacortes Police Station. (Id. ¶ 31.) Once

4 there, Officer Leetz locked Mr. Vargas in a “very cold” holding cell for about 40 minutes

5 until a USBP agent arrived. (Id.) Mr. Vargas claims he was not permitted to wear shoes

6 in the cell and was denied access to a blanket. (Id. ¶¶ 32-33.) Mr. Vargas was permitted

7 to make a telephone call but was not permitted to speak in Spanish during that call;

8 Officer Leetz allegedly “barked” “No Spanish!” at Mr. Vargas when he attempted to

9 speak into the phone in Spanish. (Id. ¶ 34.) Mr. Vargas claims he “felt frightened and

10 distressed.” (Id. ¶ 36.)

11

After approximately 40 minutes, USBP agent John Orr arrived on the scene. (Id.

12 ¶ 37.) Agent Orr entered Mr. Vargas’ cell and began asking Mr. Vargas questions. (Id.

13 ¶ 38.) He asked Mr. Vargas where he was born, how long he had been in the United

14 States, and what his immigration status was. (Id.) Mr. Vargas initially refused to answer

15 any questions without first speaking to an attorney, but Agent Orr testifies that Mr.

16 Vargas eventually relented and provided some basic information. (Id. ¶¶ 38-41; Orr 17 Decl. (Dkt. # 17) ¶¶ 4-5.)2 Mr. Vargas appears to dispute this fact. (Id. ¶¶ 40-43.)

18 However, Agent Orr testifies that Mr. Vargas told him he lived in Washington and had

19

20 2 The court is not permitted to look beyond the pleadings on a Rule 12(b)(6) motion to

21 dismiss, but the United States has also moved for summary judgment. (See Mot.) Thus, the facts contained in Agent Orr’s declaration and in similar declarations may be considered for

22

purposes of the United States’ summary judgment motion, but not for purposes of its Rule 12(b)(6) motion.

ORDER- 4

1 lived there for about 10 years but was born in Mexico. (Orr Decl. ¶¶ 4-5.) Mr. Vargas

2 alleges that he felt “caged and outnumbered” because Agent Orr’s questions were

3 “aggressive and unrelenting” and that he “did not believe he had the choice to stay

4 silent.” (Compl. ¶ 41.) Nevertheless, Mr. Vargas alleges that he “remained

5 unresponsive” throughout this questioning. (Id. ¶ 43.) Agent Orr testifies that he then

6 asked Mr. Vargas about his immigration status, but that Mr. Vargas refused to answer

7 any more questions without an attorney present. (Orr Decl. ¶ 5.)

8

Mr. Vargas was then taken to the Bellingham Border Patrol Station in Bellingham,

9 Washington. (Compl. ¶ 42.) Agent Orr believed that it was necessary to fingerprint Mr.

10 Vargas and run his fingerprints through a database called “IDENT” that would determine

11 if Mr. Vargas had valid immigration status or prior criminal history. (Orr Decl. ¶ 7.) The

12 closest IDENT machine was at the Bellingham Border Patrol Station, so Mr. Vargas was

13 taken there. (Id.) Mr. Vargas was held overnight in Bellingham. (Compl. ¶ 42.) USBP

14 agents ran Mr. Vargas’ fingerprints through the IDENT machine and found no criminal

15 or immigration records associated with them. (Id. ¶ 43.)

16

Mr. Vargas was eventually arrested and placed in immigration detention. USBP

17 agents served Mr. Vargas with a “Form I-213” arrest record and a “Form I-862” charging

18 document. (Id. ¶ 45.) He was handcuffed, shackled, and transported to the Northwest

19 Immigration Detention Center in Tacoma, Washington. (Id. ¶ 47.) Once there, he was

20 transferred to the custody of Immigration and Customs Enforcement (“ICE”), which

21 instituted removal proceedings against him. (Id.) Mr. Vargas remained in immigration

22

ORDER- 5

1 detention for approximately 10 weeks until he was permitted to post bond. (Id. ¶ 48.) On

2 February 6, 2013, his removal proceedings were administratively closed. (Id. ¶ 49.)

3

On December 27, 2013, Mr. Vargas brought this complaint against the United

4 States. (See Compl.) He alleges several claims pursuant to the Federal Tort Claims Act

5 including false arrest, false imprisonment, intentional and negligent infliction of

6 emotional distress, and abuse of process. (Id. ¶ 78-123.) He alleges that his physical and

7 mental health worsened as a result of his arrest and imprisonment and that he lost his job

8 and sustained other economic and professional harm as well. (Id. ¶¶ 53-58.) He also

9 alleges that USBP agents intentionally fabricated information contained in his Form I-

10 213. (Id. ¶¶ 59-77.)

11

Five months later, the United States brought this motion to dismiss. (See Mot.) In

12 the motion, the United States argues that Mr. Vargas’ arrest was lawful and that,

13 accordingly, Mr. Vargas’s tort claims should be dismissed. (Id.) The United States

14 brought the motion as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

15 or, in the alternative, as a motion for summary judgment.

16

III. ANALYSIS

17 A. Applicable Legal Standards

18

This is not, strictly speaking, a Rule 12(b)(6) motion to dismiss. A Rule 12(b)(6)

19 motion may not be filed after an answer is filed, see Fed. R. Civ. P. 12(b), and the United

20 States filed this motion more than two months after it filed its answer (see Dkt. ## 14,

21 15). Accordingly, it is proper to construe the United States’ motion not as a Rule

22

ORDER- 6

1 12(b)(6) motion, but as a motion for judgment on the pleadings. See Elvig v. Calvin

2 Presbyterian Church, 375 F.3d 951, 954-55 (9th Cir. 2004).

3

Motions for judgment on the pleadings are governed by Federal Rule of Civil

4 Procedure 12(c). Under that rule, the court “must accept all factual allegations in the

5 complaint as true and construe them in the light most favorable to the non-moving party.”

6 Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (citation omitted); see Yakima

7 Valley Mem’l Hosp. v. Wash. State Dept. of Health, 654 F.3d 919, 925 (9th Cir. 2011)

8 (court “assume[s] the facts alleged in the complaint are true”). “Judgment on the

9 pleadings is properly granted when there is no issue of material fact in dispute, and the

10 moving party is entitled to judgment as a matter of law.” Id.; see Lyon v. Chase Bank

11 USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011).

12

Here, the court applies the same standard as it would on a Rule 12(b)(6) motion.

13 Indeed, any time a Rule 12(c) motion is used as a vehicle for a Rule 12(b)(6) motion after

14 an answer has been filed, or when it is functionally equivalent to a motion to dismiss for

15 failure to state a claim, the same standard applies to both. Dworkin v. Hustler Magazine

16 Inc., 867 F.2d 1188, 1192 (9th Cir. 1989); see Seabright Ins. Co. v. Matson Terminals,

17 Inc., 828 F. Supp. 2d 1177 (D. Haw. 2011) (motions differ in time of filing but are

18 otherwise functionally identical and require same standard of review). Thus, dismissal

19 for failure to state a claim “is proper if there is a ‘lack of a cognizable legal theory or the

20 absence of sufficient facts alleged under a cognizable legal theory.’” Conservation Force

21 v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police

22 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).

ORDER- 7

1

The United States also presents its motion, in the alternative, as a motion for

2 summary judgment. (See Mot.) There are several facts at issue in this motion that are

3 not alleged in Mr. Vargas’ complaint. As such, the United States has submitted a handful

4 of declarations establishing facts outside the pleadings on which it would have the court

5 rely. (See, e.g., Orr Decl. (Dkt. # 17) ¶¶ 4-5.) If the court relies on these facts, the

6 motion must be treated as a motion for summary judgment. See Fed. R. Civ. P. 12(b)(6);

7 Fed. R. Civ. P. 56.

8

Summary judgment is appropriate if the evidence, when viewed in the light most

9 favorable to the non-moving party, demonstrates “that there is no genuine dispute as to

10 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

11 P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cnty. of L.A.,

12 477 F.3d 652, 658 (9th Cir. 2007). The court is “required to view the facts and draw

13 reasonable inferences in the light most favorable to the [non-moving] party.” Scott v.

14 Harris, 550 U.S. 372, 378 (2007). The moving party bears the initial burden of showing

15 there is no genuine issue of material fact and that he or she is entitled to prevail as a

16 matter of law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, the

17 non-moving party “must make a showing sufficient to establish a genuine dispute of

18 material fact regarding the existence of the essential elements of his case that he must

19 prove at trial.” Galen, 477 F.3d at 658.

20 B. Motion to Strike

21

As a preliminary matter, the court GRANTS a motion to strike contained in Mr.

22 Vargas’ surreply. Mr. Vargas moves to strike certain arguments that the United States

ORDER- 8

1 raises for the first time in its reply brief. (Surreply (Dkt. # 23).) As a general matter, a

2 district court need not consider arguments raised for the first time in a reply brief.

3 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Koerner v. Grigas, 328 F.3d

4 1039, 1048 (9th Cir. 2003)). The reason for this is that parties should be given an

5 opportunity to respond to opposing arguments whenever possible. After a reply brief is

6 filed, the non-moving party does not have an additional opportunity to rebut newly-raised

7 arguments, to present contrary authority or evidence, or to otherwise explain why the

8 moving party’s newly-raised arguments should be rejected. It is for this reason that this

9 court has held that “[a]rguments cannot be properly raised for the first time on reply.”

10 See, e.g., Hampton v. Allstate Corp., No. C13-0541JLR, 2013 WL 6000040, at *6 (W.D.

11 Wash. Nov. 12, 2013) (citing Amazon.com LLC v. Lay, 758 F. Supp. 2d 1154, 1171

12 (W.D. Wash. 2010)).

13

Here, it would be unfair to consider the United States’ newly-raised arguments at

14 this time. In its reply brief, the United States does not merely respond to Mr. Vargas’

15 arguments or introduce new, but related, lines of reasoning in support of its position.

16 (See Reply (Dkt. # 21).) Instead, the United States seeks to reframe its motion as an

17 entirely different motion. (See id.) In this regard, the United States asserts that it “cited

18 Rule 12(b)(6), but should have brought its motion under Rule 12(b)(1).” (Id. at 1.) In

19 other words, the United States seeks to transform its failure to state a claim/summary

20 judgment motion into a motion to dismiss for lack of subject matter jurisdiction.

21 Moreover, the United States raises a “factual” challenge to the court’s subject matter

22 jurisdiction, which permits the court to go outside the pleadings and find jurisdictional

ORDER- 9

1 facts. (See id. at 1-3); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

2 2004). This is an entirely different kind of motion than the United States’ original

3 motion, and relies on arguments that are different both in kind and in substance from

4 anything raised in the original motion. The United States would have the court pass on

5 the merits of these arguments without hearing any opposition or response from Mr.

6 Vargas. This would be unfair. Accordingly, the court exercises its discretion to ignore

7 arguments raised for the first time in a reply brief, but without prejudice to re-raising

8 those arguments at another time in a separate, procedurally appropriate motion. See

9 Zamani, 491 F.3d at 997.

10 C. Issues to be Addressed

11

The United States nominally moves for dismissal/summary judgment with respect

12 to all of Mr. Vargas’ claims. (See Mot. at 1-2.)

13

However, a careful examination of the United States’ motion and response reveals

14 that it has only addressed one aspect of Mr. Vargas’ claims in sufficient detail to warrant

15 the court’s consideration. In its motion, the United States focuses its efforts on

16 demonstrating that Mr. Vargas’ arrest was lawful. (See generally id.) The United States

17 seeks to do this by showing that the USBP agents involved in the arrest were justified by

18 reasonable suspicion and probable cause to detain and arrest Mr. Vargas. (See id. at 6-19 19 (reasonable suspicion to detain), 19-23 (probable cause to arrest).) But Mr. Vargas’ 20 complaint alleges more than just unlawful arrest. Mr. Vargas also brings several claims 21 that are premised on other conduct. (Compl. ¶¶ 99-123.) Specifically, he brings claims

22 for negligent and intentional infliction of emotional distress, and for abuse of process

ORDER- 10

1 premised on (1) unlawful arrest; (2) “intimidating tactics” during interrogation; and (3)

2 USBP’s allegedly falsified I-213 form which contained patently false statements of fact.

3 (Id.)

4

The United States does not address these allegations at all in its motion—at least

5 not in sufficient detail to justify dismissing the claims. (See Mot.) In some cases, the

6 United States raises new arguments in its reply brief for why certain allegations do not

7 state a claim. (See, e.g., Reply at 9-11.) For example, in its reply brief, the United States

8 raises a completely new argument related to abuse of process. (See id.) However, as

9 discussed above, it is not fair to consider this argument without giving Mr. Vargas an

10 opportunity to respond. See Zamani, 491 F.3d at 997.

11

Accordingly, the court rejects the United States’ argument that it should dismiss

12 claims not based on unlawful arrest. The United States has not met its burden of

13 demonstrating a basis for either Rule 12 dismissal or summary judgment on Mr. Vargas’

14 infliction of emotional distress and abuse of process claims to the extent those claims are

15 based on “intimidating tactics” during interrogation and USBP’s falsified I-213 form.

16 (See Compl. ¶¶ 99-123.)

17 D. Framework for Analyzing Unlawful Arrest

18

With these preliminary issues decided, the court’s primary task in deciding this

19 motion is to determine whether Mr. Vargas’ arrest was lawful. If so, Rule 12 dismissal

20 and/or summary judgment is appropriate with respect to Mr. Vargas’ claims for false

21 arrest, false imprisonment, and infliction of emotional distress—to the extent the

22 emotional distress claims are premised on unlawful arrest. If not, dismissal is not

ORDER- 11

1 appropriate. In other words, these causes of action rise or fall with the lawfulness of Mr.

2 Vargas’ arrest. See, e.g., Hanson v. City of Snohomish, 852 P.2d 295, 301 (Wash. 1993)

3 (lawful arrest is a complete defense to unlawful imprisonment or false arrest); Conrad v.

4 United States, 447 F.3d 760, 767 (9th Cir. 2006) (noting that federal court must apply

5 state law in assessing tort liability under the FTCA).

6

The lawfulness of Mr. Vargas’ arrest must be examined in light of USBP agents’

7 authority to act, which is set forth in relevant part in 8 U.S.C. § 1357. Under that statute,

8 entitled “Powers of immigration officers and employees,” USBP agents may, without a

9 warrant,

10

(1) . . . interrogate any alien or person believed to be an alien as to his right

to be or to remain in the United States; [and] (2) . . . arrest any alien in the

11

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 and is likely to

12

escape before a warrant can be obtained for his arrest.

13 8 U.S.C. § 1357(a)(1)-(2). Federal regulations expand on this authority, and in particular

14 8 C.F.R. § 287.8, which permits immigration officers to “briefly detain” a suspected

15 undocumented immigrant “for questioning” if the officer has “reasonable suspicion,

16 based on specific articulable facts, that the person being questioned is . . . an alien

17 illegally in the United States . . . .” 8 C.F.R. § 287.8(b)(2). That same regulation permits

18 immigration officers to make arrests, although an arrest can be made only if “the

19 designated immigration officer has reason to believe that the person to be arrested . . . is

20 an alien illegally in the United States.” 8 C.F.R. § 287.8(c)(2). This requirement is

21 tantamount to a constitutional “probable cause” requirement. See, e.g., Tejada-Mata v.

22 I.N.S., 626 F.2d 721, 725 (9th Cir. 1980).

ORDER- 12

1

Thus, a USBP agent’s authority to detain and arrest suspected illegal aliens

2 depends on familiar Fourth Amendment concepts of reasonable suspicion and probable

3 cause, respectively. Under the Fourth Amendment, police stops fall into three categories.

4 Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir. 1993). First, a police officer may

5 stop a person for questioning so long as the person is free to leave at any time. Id.

6 Second, a police officer may “seize” a person for a brief, investigatory stop. Id. A

7 seizure takes place when a “police officer accosts an individual and restrains his freedom

8 to walk away.” Terry v. Ohio, 392 U.S. 1, 16 (1968). Such stops must be supported by a

9 “reasonable suspicion to believe that criminal activity ‘may be afoot.’” United States v.

10 Arvizu, 534 U.S. 266, 273 (2002). Finally, the police may make a full-scale arrest, which

11 must be supported by probable cause. Morgan, 997 F.2d at 1252 (citing Adams v.

12 Williams, 407 U.S. 143, 148-49 (1972)).

13

When determining whether reasonable suspicion exists, a court “must look at the

14 ‘totality of the circumstances’ of each case to see whether the detaining officer has a

15 ‘particularized and objective basis’ for suspecting legal wrongdoing.” Arvizu, 534 U.S.

16 at 273. The “totality of the circumstances” approach assures that court do not “engage in

17 a ‘sort of divide-and-conquer analysis’ by evaluating and rejecting each factor in

18 isolation.” United States v. Cheromiah, 455 F.3d 1216, 1221 (9th Cir. 2006). “This

19 process allows officers to draw on their own experience and specialized training to make

20 inferences from and deductions about the cumulative information available to them that

21 ‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266, 273

22

ORDER- 13

1 (2002). “Reasonable suspicion” falls short of “probable cause,” and also falls

2 “considerably short of satisfying a preponderance of the evidence standard.” Id. at 274.

3

The concept of reasonable suspicion is somewhat abstract, and is not a “finely-

4 tuned standard.” Id. The United States Supreme Court has “deliberately avoided

5 reducing it to a neat set of legal rules.” Id. (internal marks omitted). However, it is also

6 clear that “reasonable suspicion may not be based on broad profiles which cast suspicion

7 on entire categories of people without any individualized suspicion of the particular

8 person to be stopped.” United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th

9 Cir. 2002) (internal quotations omitted). Likewise, an “individual’s presence in an area

10 of expected criminal activity, standing alone, is not enough to support a reasonable,

11 particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528

12 U.S. 119, 124 (2000) (citing Brown v. Texas, 443 U.S. 47 (1979)). Finally, an officer’s

13 reliance on a mere “hunch” is insufficient to justify an investigative detention. Arvizu,

14 534 U.S. at 274.

15

Probable cause is a more demanding standard than reasonable suspicion. Id. at

16 123. Probable cause exists if “under the totality of circumstances known to the arresting

17 officers, a prudent person would have concluded that there was a fair probability that [the

18 defendant] had committed a crime.” Jackson v. City of Seattle, NO. C05-2034 JLR, 2006

19 WL 30000953, at *2 (W.D. Wash. Oct. 20, 2006) (quoting Grant v. City of Long Beach,

20 315 F.3d 1081, 1085 (9th Cir. 2002)). Stated another way, probable cause to arrest exists

21 when the officer has knowledge or reasonably trustworthy information sufficient to lead a

22 person of reasonable caution to believe that an offense has been or is being committed.

ORDER- 14

1 Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause is an objective standard. United

2 States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). However, although in some

3 instances there may initially be probable cause justifying an arrest, when additional

4 information obtained at the scene indicates that “there is less than a fair probability that

5 the defendant has committed or is committing a crime . . . [the] execution of the arrest or

6 continuation of the arrest is illegal.” Id. at 1073 (citing United States v. Ortiz-Hernandez,

7 427 F.3d 567, 574 (9th Cir. 2005).

8 E. 9

Unknown Facts Both of Mr. Vargas’ motions—for Rule 12 dismissal and for summary

10 judgment—are premature. The court has examined the record in great detail, has

11 thoroughly reviewed the controlling law and the briefing of the parties, and has heard oral 12 argument. Having done all this, the court is led to the inescapable conclusion that the 13 factual record is not yet sufficiently developed to permit a conclusion that the United 14 States is entitled to judgment as a matter of law. In short, there are too many disputed

15 and unknown facts for the court to conclude that, as a matter of law, the USBP officers

16 involved in Mr. Vargas’ detention had reasonable suspicion to order that he be detained

17 and probable cause to arrest him. If the historical facts underlying a case are undisputed,

18 reasonable suspicion and probable cause can be decided as a matter of law. Tsao v. 19 Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012); cf. Haywood v. City of Twisp, 20 No. CV-06-355-EFS, 2008 WL 2468435, at *3 (E.D. Wash. June 17, 2008). However, if 21 there is a genuine dispute, or simply a lack of information and allegations, with respect to

22 a fact that is material to reasonable suspicion or probable cause, it cannot be determined

ORDER- 15

1 whether one party is entitled to judgment as a matter of law on these issues. See, e.g.,

2 Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); Burdett v. Reynoso, No. C-06-

3 00720 JCS, 2007 WL 2429426, at *20 (N.D. Cal. Aug. 23, 2007). As explained below,

4 that is the situation here.

5

To begin, with regard to reasonable suspicion, it is helpful to understand exactly

6 what is known. It is known that Mr. Vargas is Hispanic and was found in Anacortes, and

7 that Officer Leetz discovered that Mr. Vargas’ driver’s license had a social security

8 number of “000-00-0000” associated with it. (Compl. ¶ 12.) It is also known that USBP

9 ran Mr. Vargas’ name through several of its databases and found no criminal or

10 immigration records. (Id. ¶ 17.) It is known that a USBP agent spoke with Mr. Vargas

11 on the phone and asked him some questions, but that Mr. Vargas refused to cooperate

12 without first speaking to a lawyer. (Id. ¶¶ 18-24.) It is known that, at that point, the

13 USBP agent asked Officer Leetz to detain Mr. Vargas, and Officer Leetz did so. (Id.

14 ¶ 27.) It is at this point that the court is asked to evaluate reasonable suspicion. In

15 particular, the court is asked to examine whether USBP had reasonable suspicion to 16 request that Officer Leetz detain Mr. Vargas.3

17

Clearly, the reasonable suspicion inquiry is not clear-cut based on these facts,

18 leading the court to focus on what is not known vis-à-vis reasonable suspicion. There are

19

20 3 Officer Leetz is not a party to this action, so it is not relevant what he knew, suspected,

21 or believed about Mr. Vargas except to the extent that Officer Leetz communicated that information to a USBP agent. Likewise, it is not relevant what Officer Leetz did or did not do

22

after the USBP agent’s request to detain Mr. Vargas except to the extent the USBP agent suggested a certain form or manner of detention was preferable or required.

ORDER- 16

1 a lot of important facts that are not known. For example, the court does not know exactly 2 what a search for Mr. Vargas’ name in the USBP databases would have or could have 3 revealed, but instead has only broad descriptions of the contents of those databases. (See 4 Mot. at 12.) Thus, the court is left to speculate about the precise import of the database 5 search. The court also does not know how good or bad Mr. Vargas’ command of the 6 English language was on that day or in general. (Compare Leetz Report at 3 (Dkt. # 1-1) 7 and Orr Decl. ¶ 6 with Compl. ¶¶ 10, 23.) The parties appear to disagree somewhat on 8 this fact. (Id.) Perhaps more importantly, the court does not know whether, or what, 9 Officer Leetz ever communicated to the USBP agent about Mr. Vargas’ ability to speak 10 English. (See Leetz Report at 3.) Along these same lines, the court does not know 11 whether Officer Leetz communicated anything at all to the USBP agent about Mr. 12 Vargas’ demeanor, his appearance, the fact that he is Hispanic, or anything else that 13 might conceivably bear on the question of reasonable suspicion. (See id.) Further, the 14 court does not know what questions the USBP agent asked Mr. Vargas over the phone or 15 whether he answered any of them at all before refusing to cooperate. (See id.; Compl. 16 ¶¶ 20-24.) Last, and also important, the court does not know what the USBP agent said 17 to Officer Leetz when he requested that Officer Leetz detain Mr. Vargas. (See Leetz 18 Report at 3.) Specifically, the court does not know whether the USBP agent suggested 19 any form or manner of detention, whether he asked Officer Leetz to use handcuffs or 20 place Mr. Vargas in a cell, whether he requested that Mr. Vargas be transported—either 21 assisted or unassisted—to the Anacortes Police Station, or whether he suggested that Mr. 22 Vargas was free to leave or insisted he be put in the back of Officer Leetz’ patrol car.
ORDER- 17

1 (See id.) These facts are simply not in the record or in Mr. Vargas’ complaint. (See

2 Compl. ¶¶ 25-29.) These facts all relate directly to the question of reasonable suspicion

3 and also to the question of whether reasonable suspicion or probable cause is the correct

4 analysis at this point. See Arvizu, 534 U.S. at 273; (Mot. at 8 (citing United States v.

5 Bravo, 295 F.3d 1002, 1010 (9th Cir. 2002); United States v. Guzman-Padilla, 573 F.3d

6 865, 884-85 (9th Cir. 2009)).)

7

There are similar problems with respect to probable cause. It is known that Mr.

8 Vargas was taken to the Anacortes Police Station and had to wait approximately 40

9 minutes before Agent Orr arrived. (Compl. ¶¶ 31-36.) It is known that Agent Orr asked

10 Mr. Vargas some questions and, at some point, Mr. Vargas refused to cooperate without

11 first speaking to a lawyer. (Compl. ¶¶ 37-41; Orr Decl. ¶ 5.) However, the court is

12 without information or allegation regarding the specific questions Mr. Vargas allegedly

13 answered or the specific answers, if any, that he gave. (Compl. ¶¶ 37-41; Orr Decl. ¶ 5.)

14 Most importantly for probable cause, the court does not know at this time whether Mr.

15 Vargas revealed to Agent Orr that he was born in Mexico. Agent Orr testifies that Mr.

16 Vargas revealed this information. (Orr Decl. ¶ 5.) However, Mr. Vargas alleges that he

17 did not. (Compl. ¶¶ 39, 43.) At oral argument, counsel for Mr. Vargas represented that

18 Mr. Vargas contests this fact and has previously contested this fact in other court

19 proceedings. As such, the court does not know, and cannot assume on this motion, that

20 Mr. Vargas revealed to Agent Orr that he was born in Mexico. See Fleming, 581 F.3d at

21 925; Scott, 550 U.S. at 378. This fact is critical to the determination of probable cause,

22 and without it, the court cannot make a fair and accurate assessment of how the law

ORDER- 18

1 applies to Mr. Vargas. See United States v. Quintana, 623 F.3d 1237, 1240-41 (8th Cir.

2 2010).

3

Without all of these facts, the court is unable to assess the totality of the

4 circumstances surrounding Mr. Vargas’ detention and/or arrest. This is critical to a

5 reasonable suspicion analysis, where the court “must look at the ‘totality of the

6 circumstances’ of each case to see whether the detaining officer has a ‘particularized and

7 objective basis’ for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273. It is also

8 critical to any probable cause analysis, where the court must determine whether “under

9 the totality of circumstances known to the arresting officers, a prudent person would have

10 concluded that there was a fair probability that [the defendant] had committed a crime.”

11 Jackson, 2006 WL 30000953, at *2. Without full knowledge of all the pertinent facts,

12 the court cannot properly conduct its analysis.

13

To summarize, there are simply too many unknown or disputed facts both within

14 and beyond the pleadings that are critical to the court’s determination of reasonable

15 suspicion and probable cause. As such, the court concludes that a more developed record

16 is necessary before these questions can be answered. To prevail on either a motion for

17 summary judgment or a Rule 12 motion to dismiss, the moving party must be able to

18 demonstrate entitlement to judgment as a matter of law. See Fed. R. Civ. P. 12, 56;

19 Celotex, 477 U.S. at 322; Galen, 477 F.3d at 658; Lyon, 656 F.3d at 883. Here, there is

20 too much missing information for the court to conclude that the United States has met its

21 burden of showing it is entitled to judgment as a matter of law on reasonable suspicion or

22 probable cause. Without the benefit of discovery, the court simply does not have all the

ORDER- 19

1 facts it needs. Accordingly, the United States’ motion is DENIED, but without prejudice

2 to filing similar motions once the record is more fully developed.

3

IV. CONCLUSION

4

For the foregoing reasons, the court DENIES the United States’ motion to dismiss

5 (Dkt. # 15).

6

Dated this 23rd day of July, 2014.

7

8

A

9

JAMES L. ROBART

10

United States District Judge

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ORDER- 20

 
 Case 2:13-cv-02325-JLR Document 47 Filed 03/31/15 Page 1 of 2

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UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 GUSTAVO VARGAS RAMIREZ,

CASE NO. Cl3-2325JLR

11

Plaintiff,

ORDER OF DISMISSAL

12

v.

13 UNITED STATES OF AMERICA,

14

Defendant.

15

The court having been notified ofthe settlement ofthis matter and it appearing

16 that no issue remains for the court's determination:

I

17

IT IS ORDERED that this action and all claims asserted herein are DISMISSED

· - · 18 with prejudice and without costs to any. party, ·· · ·

19

In the event settlement is not perfected, any party may move to reopen the case,

20 provided such motion is filed within 60 days of the date of this order. Any trial date and

21 pretrial dates previously set are hereby VACATED.

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ORDER OF DISMISSAL - 1

Case 2:13-cv-02325-JLR Document 47 Filed 03/31/15 Page 2 of 2

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ORDER OF DISMISSAL- 2

 
 Case: 2:13-cv-2325 As of: 05/29/2015 08:04 AM PDT 1 of 5
CLOSED,PROTO
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:13−cv−02325−JLR

Vargas Ramirez v. United States of America Assigned to: Judge James L. Robart Cause: 28:2671 Federal Tort Claims Act
Plaintiff Gustavo Vargas Ramirez

Date Filed: 12/27/2013 Date Terminated: 03/31/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Glenda Melinda Aldana Madrid NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206−957−8646 Email: glenda@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elizabeth Hawkins BEAN PORTER HAWKINS PLLC 2200 SIXTH AVENUE STE 835 SEATTLE, WA 98121 206−728−4220 Email: ehawkins@hawkinsimmigration.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206−957−8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States of America

represented by Kristin Berger Johnson US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−7970 Email: Kristin.B.Johnson@usdoj.gov ATTORNEY TO BE NOTICED
Rebecca Shapiro Cohen US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−6526

Case: 2:13-cv-2325 As of: 05/29/2015 08:04 AM PDT 2 of 5
Fax: 206−553−4073 Email: rebecca.cohen@usdoj.gov TERMINATED: 02/28/2014 ATTORNEY TO BE NOTICED

Date Filed 12/27/2013 12/30/2013
12/30/2013 12/30/2013 12/30/2013
01/06/2014
01/29/2014 01/29/2014 01/29/2014
02/03/2014 02/04/2014
02/28/2014 02/28/2014 02/28/2014 02/28/2014

# Docket Text
1 COMPLAINT against defendant(s) UNITED STATES (Receipt # 0981−3460400), filed by Gustavo Vargas Ramirez. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet, # 3 Summons)(Adams, Matt) (Entered: 12/27/2013)
NOTICE to Filer: SIGNATURE IMPROPER: The Complaint was improperly signed by Glenda Aldana Madrid. Pursuant to FRCP Rule 11 and LCR 5(d), signatures must comply with Section III(L) of the Electronic Filing Procedures, which states, "An electronically filed pleading or other document which requires an attorney's signature, must have the signors' name printed or typed on the line and under all signature lines." You do not have to re−file this document, but please be sure all future documents are properly signed. Thank you.(DJ) (Entered: 12/30/2013)
Hon. Mary Alice Theiler added. (DJ) (Entered: 12/30/2013)
2 Summons electronically issued as to defendant(s) United States of America. (DJ) (Entered: 12/30/2013)
3 NOTICE OF INITIAL ASSIGNMENT TO A US MAGISTRATE JUDGE AND CONSENT OR DECLINE FORM. If consent or decline, return the executed form by 2/10/2014. Please Note: Forms must not be electronically filed with the Court. (DJ) (Entered: 12/30/2013)
4 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT. Joint Status Report due by 2/18/2014, FRCP 26f Conference Deadline is 2/3/2014, Initial Disclosure Deadline is 2/10/2014, by Hon. Mary Alice Theiler. (JT) (Entered: 01/06/2014)
5 NOTICE of Appearance by attorney Rebecca Shapiro Cohen on behalf of Defendant United States of America. (Cohen, Rebecca) (Entered: 01/29/2014)
6 STIPULATION AND PROPOSED ORDER Extending Initial Deadlines by parties. (Cohen, Rebecca) (Entered: 01/29/2014)
7 AFFIDAVIT of Mailing of Summons and Complaint to U.S. Attorney's Office for the Western District of Washington, U.S. Attorney General, and Department of Homeland Security Office of the General Counsel on 1/2/2014, filed by Plaintiff Gustavo Vargas Ramirez. (Aldana Madrid, Glenda) (Entered: 01/29/2014)
8 MINUTE ORDER REASSIGNING CASE by William M. McCool. Case reassigned to Judge James L. Robart for all further proceedings. Hon. Mary Alice Theiler no longer assigned to case. Cc to JLR. (JT) (Entered: 02/03/2014)
9 STIPULATION AND ORDER re 6 Stipulation extending Initial deadlines filed by United States of America. FRCP 26f Conference Deadline is 2/18/2014, Initial Disclosure Deadline is 2/24/2014, Joint Status Report due by 3/4/2014, by Judge James L. Robart. (MD) (Entered: 02/05/2014)
10 NOTICE of Appearance by attorney Kristin Berger Johnson on behalf of Defendant United States of America. (Johnson, Kristin) (Entered: 02/28/2014)
11 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Rebecca Shapiro Cohen for Defendant United States of America. (Johnson, Kristin) (Entered: 02/28/2014)
12 JOINT STATUS REPORT signed by all parties estimated Trial Days: 2−4. Filed by Defendant United States of America.(Johnson, Kristin) (Entered: 02/28/2014)
13 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *3 days*. Mediation shall be completed no later than thirty (30) days prior to the trial date. Bench Trial is set for 4/6/2015 at 01:30 PM in Courtroom 14106 before Judge James L. Robart.

Case: 2:13-cv-2325 As of: 05/29/2015 08:04 AM PDT 3 of 5

03/10/2014 05/29/2014 05/29/2014 05/29/2014 05/30/2014 06/16/2014 06/17/2014 06/20/2014 06/23/2014 06/25/2014 07/11/2014
07/18/2014
07/23/2014 09/09/2014 09/10/2014

Joinder of Parties due by 5/1/2014, Amended Pleadings due by 10/8/2014, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 10/8/2014, Motions due by 11/7/2014, Discovery completed by 12/8/2014, Dispositive motions due by 1/6/2015, Settlement conference to be held by 2/5/2015, 39.1 mediation to be completed by 3/9/2015, Motions in Limine due by 2/23/2015, Pretrial Order due by 3/18/2015, Pretrial Conference set for 3/23/2015 at 02:00 PM in Courtroom 14106 before Judge James L. Robart. Trial briefs to be submitted by 3/30/2015, Proposed Findings of Fact and Conclusions of Law to be submitted by 3/30/2015, by Judge James L. Robart. (CC) (Entered: 02/28/2014)
14 ANSWER to 1 Complaint by United States of America.(Johnson, Kristin) (Entered: 03/10/2014)
15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT by Defendant United States of America. (Attachments: # 1 Exhibit A) Noting Date 6/20/2014, (Johnson, Kristin) (Entered: 05/29/2014)
16 DECLARATION of Russell Wynn filed by Defendant United States of America re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT (Johnson, Kristin) (Entered: 05/29/2014)
17 DECLARATION of John M. Orr filed by Defendant United States of America re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT (Johnson, Kristin) (Entered: 05/29/2014)
18 PROPOSED ORDER (Unsigned) re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT (Johnson, Kristin) (Entered: 05/30/2014)
19 RESPONSE, by Plaintiff Gustavo Vargas Ramirez, to 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT. Oral Argument Requested. (Adams, Matt) (Entered: 06/16/2014)
20 NOTICE of Compliance Certificate of Service re 19 Response to Motion, by Plaintiff Gustavo Vargas Ramirez. (Adams, Matt) (Entered: 06/17/2014)
21 REPLY, filed by Defendant United States of America, TO RESPONSE to 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT (Johnson, Kristin) (Entered: 06/20/2014)
22 NOTICE OF INTENT TO FILE A SURREPLY TO DEFENDANTS REPLY ; filed by Plaintiff Gustavo Vargas Ramirez. (Aldana Madrid, Glenda) (Entered: 06/23/2014)
23 SURREPLY filed by Plaintiff Gustavo Vargas Ramirez re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT (Adams, Matt) (Entered: 06/25/2014)
24 MINUTE ORDER Setting Hearing on govt's 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND/OR SUMMARY JUDGMENT : Motion Hearing set for 7/18/2014 at 10:00 AM by Judge James L. Robart. (RS) (Entered: 07/11/2014)
25 MINUTE ENTRY for proceedings held before Judge James L. Robart− Dep Clerk: Casey Condon; Pla Counsel: Matt Adams, Glenda Madrid, Elizabeth Hawkins; Def Counsel: Kristin Johnson; CR: Kari McGrath; Motion Hearing held on 7/18/2014. The court hears from counsel re: the Motion to Dismiss, Dkt. #15. The court takes the matter under advisement.(CC) (Entered: 07/18/2014)
26 ORDER Denying United States' 15 Motion to Dismiss for Failure to State a Claim by Judge James L. Robart.(LMK) (Entered: 07/23/2014)
27 STIPULATION Protective Order by parties (Aldana Madrid, Glenda) (Entered: 09/09/2014)
28 ORDER − Court Denies re 27 Stipulation for entry of their agreed protective order filed by Gustavo Vargas Ramirez, by Judge James L. Robart. (MD) (Entered: 09/11/2014)

Case: 2:13-cv-2325 As of: 05/29/2015 08:04 AM PDT 4 of 5

09/11/2014 09/11/2014 10/06/2014 10/08/2014
01/15/2015
01/15/2015 01/15/2015 01/26/2015 02/02/2015 02/02/2015 02/06/2015 02/06/2015 03/10/2015 03/17/2015 03/17/2015 03/18/2015
03/19/2015

29 STIPULATION AND PROPOSED ORDER (Proposed Stipulated Protective Order) by parties (Attachments: # 1 Exhibit Redline Version of Proposed Stipulated Protective Order)(Aldana Madrid, Glenda) (Entered: 09/11/2014)
30 STIULATED PROTECTIVE ORDER by Judge James L. Robart. (MD) (Entered: 09/11/2014)
31 STIPULATION AND PROPOSED ORDER EXTENDING DEADLINES by parties (Johnson, Kristin) (Entered: 10/06/2014)
32 STIPULATION AND ORDER re 31 Stipulation and order extending deadlines filed by United States of America. Discovery completed by 1/8/2015, Dispositive motions due by 1/15/2015, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/8/2014, by Judge James L. Robart. (MD) (Entered: 10/08/2014)
34 MOTION FILED UNDER SEAL PER PROTECTIVE ORDER− MOTION for Summary Judgment by Defendant United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 FILED UNDER SEAL PER PROTECTIVE ORDER Exhibit E, # 6 Exhibit F, # 7 Proposed Order) Noting Date 2/6/2015, (Johnson, Kristin) Modified on 1/26/2015 − USA called and stated that the motion and exhibit E to be sealed per Protective Order. The other exhibits are not sealed(MD). (Entered: 01/15/2015)
35 MOTION for Partial Summary Judgment by Plaintiff Gustavo Vargas Ramirez. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/6/2015, (Adams, Matt) (Entered: 01/15/2015)
36 DECLARATION of Glenda M. Aldana Madrid filed by Plaintiff Gustavo Vargas Ramirez re 35 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit)(Adams, Matt) (Entered: 01/15/2015)
37 REDACTION to 34 MOTION for Summary Judgment by Defendant United States of America (Attachments: # 1 Exhibit E (Redacted))(Johnson, Kristin) (Entered: 01/26/2015)
38 RESPONSE, by Defendant United States of America, to 35 MOTION for Partial Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Johnson, Kristin) (Entered: 02/02/2015)
39 RESPONSE, by Plaintiff Gustavo Vargas Ramirez, to 34 MOTION for Summary Judgment . (Aldana Madrid, Glenda) (Entered: 02/02/2015)
40 REPLY, filed by Defendant United States of America, TO RESPONSE to 34 MOTION for Summary Judgment (Johnson, Kristin) (Entered: 02/06/2015)
41 REPLY, filed by Plaintiff Gustavo Vargas Ramirez, TO RESPONSE to 35 MOTION for Partial Summary Judgment (Adams, Matt) (Entered: 02/06/2015)
Set/Reset Hearings: Oral argument on the pending motions, (Dkt. ##34,35), is scheduled Wednesday, March 18, 2015 at 4:00 p.m. before Judge James L. Robart. (CC) (Entered: 03/10/2015)
Set/Reset Hearings: Oral argument scheduled Wednesday, March 18, 2015 at 4:00 p.m. is rescheduled for 2:00 p.m.(CC) (Entered: 03/17/2015)
Set/Reset Hearings: Pretrial Conference scheduled Monday, March 23, 2015 at 2:00 p.m. is rescheduled for 10:30 a.m. before Judge James L. Robart. (CC) (Entered: 03/17/2015)
42 MINUTE ENTRY for proceedings held before Judge James L. Robart− Dep Clerk: Casey Condon; Pla Counsel: Glenda Madrid; Def Counsel: Kristin Johnson; CR: Nickie Drury; Motion Hearing held on 3/18/2015. The court hears argument from counsel on the pending motions. The court will allow counsel for plaintiff to submit a motion to seal and the unredacted motion for partial summary judgment. (CC) (Entered: 03/18/2015)
43 NOTICE of Stricken Heairng − The Pretrial Conference scheduled Monday, March 23, 2015 is stricken. (CC) (Entered: 03/19/2015)

Case: 2:13-cv-2325 As of: 05/29/2015 08:04 AM PDT 5 of 5

03/19/2015 03/23/2015 03/23/2015 03/31/2015

44 MOTION for Partial Summary Judgment by Plaintiff Gustavo Vargas Ramirez. Oral Argument Requested. (Attachments: # 1 Exhibit, # 2 Proposed Order) Noting Date 2/6/2015, (Aldana Madrid, Glenda) (Entered: 03/19/2015)
45 ORDER REGARDING EVIDENTIARY HEARING: Evidentiary Hearing set for 4/6/2015 at 11:00 AM before Judge James L. Robart. Parties shall exchange witness and exhibits lists by 3/27/2015, Proposed Findings of Fact and Conclusions of Law to be submitted by 4/2/2015, by Judge James L. Robart. (MD) (Entered: 03/23/2015)
46 ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT − granting in part and denying in part 34 United States' Motion for Summary Judgment; striking 35 Redacted version of Mr. Vargas' Motion for Partial Summary Judgment; granting in part and denying in part 44 Mr. Vargas' Motion for Partial Summary Judgment by Judge James L. Robart.(MD) (Entered: 03/23/2015)
47 ORDER OF DISMISSAL: Counsel having notified the Court of settlement of this case, and it appearing that no issue remains for the Court's determination, IT IS ORDERED that this action and all claims asserted herein are DISMISSED with prejudice and without costs to any party. In the event that settlement is not perfected, any party may move to reopen the case within 60 days of the date of this order. Any trial date and pretrial dates previously set are hereby VACATED. Signed by Judge James L. Robart. (CC) (Entered: 03/31/2015)