Jane Doe, # 1; Jane Doe, # 2; Norlan Flores, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees,
John F. Kelly, Secretary, United States Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner, United States Customs and Border Protection; Ronald Vitiello, Chief, United States Border Patrol; Jeffrey Self, Commander, Arizona Joint Field Command; Paul Beeson, Chief Patrol Agent - Tucson Sector, Defendants-Appellees/Cross-Appellants.
and Submitted October 16, 2017 San Francisco, California
from the United States District Court for the District of
Arizona David C. Bury, Senior District Judge, Presiding D.C.
R. Sigel (argued), Robert J. Esposito, and Elizabeth G.
Balassone, Morrison & Foerster LLP, San Francisco,
California; Deanne E. Maynard, Sophia M. Brill, Bryan J.
Leitch, and Lena H. Hughes, Morrison & Foerster LLP,
Washington, D.C.; Louise C. Stoupe and Pieter S. de Ganon,
Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer
Mayer, Morrison & Foerster LLP, Palo Alto, California;
Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado,
National Immigration Law Center, Los Angeles, California;
Kathleen E. Brody, Daniel J. Pochoda, and Brenda Muñoz
Furnish, ACLU Foundation of Arizona, Phoenix, Arizona; James
J. Cekola, Morrison & Foerster LLP, San Diego,
California; Mary A. Kenney, Melissa E. Crow, and Aaron
Reichlin-Melnick, American Immigration Council, Washington,
D.C.; Elisa Della-Piana and Megan Sallomi, Lawyers'
Committee for Civil Rights of the San Francisco Bay Area, San
Francisco, California; Abigail L. Colella, Morrison &
Foerster LLP, New York, New York; for
Christina Parascandola (argued), Trial Attorney; Sarah B.
Fabian, Senior Litigation Counsel; William C. Peachey,
Director; Chad A. Readler, Acting Assistant Attorney General,
Civil Division; Office of Immigration Litigation, District
Court Section, United States Department of Justice,
Washington, D.C.; for Defendants-Appellees/Cross-Appellants.
Before: Richard C. Tallman and Consuelo M. Callahan, Circuit
Judges, and David A. Ezra, [*] District Judge.
panel affirmed the district court's preliminary
injunction in an action brought by civil detainees confined
in U.S. Customs and Border Protection facilities within the
Tucson Sector of the U.S. Border Patrol who alleged they were
subjected to inhumane and punitive treatment.
district court granted a preliminary injunction requiring
that defendants provide detainees with mats and blankets
after 12 hours. Defendants appealed, alleging that the
district court misapprehended the standard set forth in
Bell v. Wolfish, 441 U.S. 520 (1979), and that the
order was too rigid and burdensome. Plaintiffs also appealed,
alleging that the district court should have ordered
defendants to provide the detainees with beds and mattresses,
allow them access to showers, and deliver adequate medical
care through medical professionals.
panel held that the district court carefully considered
plaintiffs' allegations of constitutional violations,
recognized the guidance provided by the Supreme Court in
Bell, and issued a limited preliminary injunction
requiring defendants to provide detainees with mats and
blankets after 12 hours. Defendants failed to show that, in
doing so, the district court misapprehended Bell or
that the preliminary injunction was overly rigid or
panel found unpersuasive plaintiffs' assertions that the
district court should have required defendants to provide
detainees with beds, showers, and medical treatment provided
by medical professionals. The panel held that the district
court recognized the unique mission of the Border Patrol and,
at least for the purposes of a preliminary injunction,
reasonably balanced the government's interests and the
detainees' constitutional rights.
CALLAHAN, CIRCUIT JUDGE.
influx of detainees in the Tucson Sector of the U.S. Border
Patrol in 2015 resulted in Defendants (federal government
officials and agents) holding detainees being processed for
longer periods of time in overcrowded and unsanitary cells at
eight different stations. Plaintiffs brought this action
alleging inhumane and punitive treatment, and seeking
injunctive relief. The district court granted a preliminary
injunction requiring that Defendants provide detainees with
mats and blankets after 12 hours. Defendants appeal, alleging
that the district court misapprehended the standard set forth
in Bell v. Wolfish, 441 U.S. 520 (1979), and that
the order was too rigid and burdensome. Plaintiffs also
appeal, alleging that the district court should have ordered
Defendants to provide the detainees with beds and mattresses,
allow them access to showers, and deliver adequate medical
care through medical professionals. We hold the district
court did not abuse its discretion and properly applied
precedent such that neither side has shown that the limited
preliminary injunction is illogical, implausible, or without
support in the record. United States v. Hinkson, 585
F.3d 1247, 1262 (9th Cir. 2009) (en banc).
filed this action in the United States District Court for
Arizona on behalf of detainees confined in U.S. Customs and
Border Protection Facilities within the Tucson Sector of the
U.S. Border Patrol. The Border Patrol's mission is to
detect and prevent the entry of certain individuals-including
terrorists, unauthorized aliens, drug smugglers, and other
criminals-into the United States between ports of entry. The
Tucson Sector patrols 262 miles of the United States-Mexico
border in southern Arizona, and, according to Defendants, in
fiscal year 2016, "apprehended 64, 891 individuals, the
second highest of any Border Patrol sectors." The number
of individuals apprehended in the Tucson Sector varies
widely. Defendants represent that between 2009 and 2016,
apprehensions each month ranged "from a high of 31, 432
in March 2009, to a low of 4, 071 in July 2015."
Border Patrol agent apprehends an individual, the person is
taken to one of eight stations in the Tucson Sector. At the
station, the Border Patrol processes the detainee,
ascertaining the individual's identity and immigration
and criminal history. The individual is then repatriated,
transferred into the custody of another agency, referred for
prosecution in accordance with the law or, in rare
alleged that the conditions in the stations were deplorable
and that it took up to three days for individuals to be
processed before transfer. Plaintiffs alleged that:
detainees are packed into overcrowded and filthy holding
cells, stripped of outer layers of clothing, and forced to
endure brutally cold temperatures. They are denied beds,
bedding, and sleep. They are deprived of basic sanitation and
hygiene items like soap, sufficient toilet paper, sanitary
napkins, diapers, and showers. And they are forced to go
without adequate food, water, medicine, and medical care.
fall of 2016, the district court certified the case as a
class action. Plaintiffs then sought a preliminary
THE DISTRICT COURT'S ORDERS
The Standards for Reviewing Conditions of
setting forth the appropriate standards for issuing a
mandatory preliminary injunction, the district court
considered the standards for reviewing conditions of
confinement. It first noted that when the government takes a
person into custody, it must provide for the person's
"basic human needs-e.g. food, clothing, shelter, medical
care, and reasonable safety." DeShaney v. Winnebago
Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200
(1989); see also Farmer v. Brennan, 511 U.S. 825,
Bell v. Wolfish, 441 U.S. 520, 535 (1979), among
other cases, the district court concluded that when
evaluating the constitutionality of pretrial detention
conditions, it had to determine whether the conditions
amounted to punishment. Citing Demery v. Arpaio, 378
F.3d 1020, 1030 (9th Cir. 2004), the district court explained
that "[t]o constitute punishment, the governmental
action must cause harm or disability that either
significantly exceeds or is independent of the inherent
discomforts of confinement." The court noted that even
in the absence of evidence of express intent, it may infer an
intent to punish "if the restriction or condition is not
reasonably related to a legitimate governmental objective or
is excessive in relation to the legitimate governmental
objective." See Pierce v. Cnty. of Orange, 526
F.3d 1190, 1205 (9th Cir. 2008).
district court noted that the Supreme Court held that
"[m]aintaining institutional security and preserving
internal order and discipline are essential goals that may
require limitation or retraction of the retained
constitutional rights of both convicted and pretrial
detainees." Bell, 441 U.S. at 546. Indeed, the
Supreme Court commented that "in the absence of
substantial evidence in the record to indicate that officials
have exaggerated their responses to these conditions, courts
should ordinarily defer to their expert judgment in such
matters." Id. at 540 n.23 (quoting Pell v.
Procunier, 417 U.S. 817, 827 (1974)).
on these cases, the district court opined that a condition of
confinement "violates the Fifth and Fourteenth
Amendments if it imposes some harm to the detainee that
significantly exceeds or is independent of the inherent
discomforts of confinement and is not reasonably related to a
legitimate governmental objective or is excessive in relation
to the legitimate governmental objective." See
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473-74 (2015).
This led the court to reason that decisions defining the
constitutional rights of prisoners establish a floor for
Plaintiffs' constitutional rights. See Padilla v.
Yoo, 678 F.3d 748, 759 (9th Cir. 2012). The district
court concluded that it could presume Plaintiffs were being
subjected to punishment "if they are confined in
conditions identical to, similar to, or more restrictive than
those under which the criminally convicted are held."
See Sharp v. Weston, 233 F.3d 1166, 1172-73 (9th
district court then observed:
This is precisely the case here. Assistant Chief Patrol Agent
for the Tucson Sector, George Allen, admitted, when this
Court asked him to compare the conditions of confinement at
Tucson Sector Border Patrol stations with those afforded
criminal detainees at the Santa Cruz County jail, that in
jail, detainees have a bed, with blankets, clean clothing,
showers, toothbrushes and toothpaste, warm meals, and an
opportunity for uninterrupted sleep. Likewise, the conditions
of confinement . . . improve once they are transferred from
Border Patrol holding cells to detention centers operated by
the United States Marshals.
district court recognized that, in assessing the
constitutionality of the conditions of confinement in the
Border Patrol stations, due consideration had to be given to
the nature, purpose and duration of an individual's time
in the station. The stations are 24-hour operations where
many detainees arrive in the evening and at night. The
holding rooms are not designed for sleeping and have no beds.
"Defendants assert[ed] that providing sleeping
facilities and turning off lights would require structural
changes at the facilities, create safety risks, and impede
its purpose to provide 24-7 immigration processing."
Defendants explained that when a detainee arrives at a
station, outer-clothing is removed for security reasons, and
detainees are placed into group-holding rooms based on age,
gender, family units, or suspected criminal status.
Processing includes obtaining biographical information and
biometrics, submitting this information through the e3Nex
Generation Identification system to determine prior criminal
and immigration arrests, preparing an arrest report,
immigration processing, consular notifications, and
communication with family members and attorneys as
appropriate. Processing, if uninterrupted, absent any
remarkable criminal or immigration history, takes between two
and two and one-half hours.
there usually are interruptions. Discovery revealed that
between June 10, 2015, and September 28, 2015, only about 3,
000 of approximately 17, 000 detainees were processed out of
detention within 12 hours. About 8, 644 detainees were held
at a Border Patrol station up to 23 hours; 6, 807 were held
for up to 47 hours; 1, 207 were held up to 71 hours; and 476
were held for 72 hours or more.
district court accepted for purposes of the preliminary
injunction that the Border Patrol's 2008 Hold Rooms and
Short Term Custody Policy (2008 Policy) and the National
Standards on Transport, Escort, Detention and Search (TEDS
standards) provided for constitutional conditions of
confinement. Although Defendants assert that these guidelines
establish the status quo, the district court found that
Plaintiffs had presented persuasive evidence that the basic
human needs of detainees were not being met by
Defendants' current practices.
Plaintiffs' Specific Complaints