FILED
NOT FOR PUBLICATION
JUN 25 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER TORRES; LIA No. 16-16315
RIVADENEYRA, individually and on
behalf of all others similarly situated, D.C. No. 2:06-cv-02482-SMM
Plaintiffs-Appellants,
MEMORANDUM*
v.
TERRY GODDARD, in his individual
capacity; CAMERON H. HOLMES, AKA
Kip Holmes, in his individual capacity;
THOMAS C. HORNE, Attorney General,
Attorney General of the State of Arizona,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted July 27, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BYBEE, NGUYEN,** and OWENS,*** Circuit Judges.
Named plaintiffs Javier Torres and Lia Rivadeneyra brought this putative
class action under 42 U.S.C. § 1983 against the Attorney General and Assistant
Attorney General of the State of Arizona. They allege that two warrants issued by
the Maricopa County Superior Court against plaintiffs’ money orders with Western
Union Financial Services (“Western Union”) violated their Fourth and Fourteenth
Amendment rights. The district court denied class certification and granted
defendants’ motion for summary judgment, holding that defendants were entitled
to absolute immunity for their actions. On appeal we held that although defendants
were absolutely immune for the preparation and application of the warrants, they
could not claim the same absolute immunity as to their execution and service, and
so we affirmed in part and reversed in part for further proceedings on the question
of qualified immunity. Torres v. Goddard, 793 F.3d 1046, 1053–59 (9th Cir.
2015). On remand, the court again denied class certification, and granted
**
This case was submitted to a panel that included Judge Kozinski.
Following Judge Kozinski’s retirement, Judge Nguyen was drawn by lot to replace
him. Ninth Circuit General Order 3.2h. Judge Nguyen has reviewed all case
materials.
***
This case was submitted to a panel that included Judge Reinhardt.
Following Judge Reinhardt’s passing, Judge Owens was drawn by lot to replace
him. Ninth Circuit General Order 3.2h. Judge Owens has reviewed all case
materials.
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defendants’ motion for summary judgment, holding that qualified immunity
protected defendants against these claims. The court reasoned that there was no
violation in that defendants “acted reasonably in service and execution . . .
believing that the warrants were supported by probable cause,” and that even if a
violation had been committed, no clearly established law gave them fair notice of
liability. Torres and Rivadeneyra appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. We review de novo
whether qualified immunity protects government officers from liability. Prison
Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). We review the denial
of class certification for an abuse of discretion. Bateman v. Am. Multi-Cinema,
Inc., 623 F.3d 708, 712 (9th Cir. 2010).
We presume the parties’ familiarity with the facts of this case as set forth in
our published opinion, see Torres, 793 F.3d at 1048–50, and as set forth in the
district court’s order. After consideration of the briefs, record, and argument, we
affirm.
1. Torres and Rivadeneyra first argue that defendants are not entitled to
qualified immunity for the execution and service of the warrants, because the
warrants were insufficiently particularized. They argue that the Attorney General’s
use and issuance of “criteria-based” warrants violates the requirement of
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particularized probable cause, see Ybarra v. Illinois, 444 U.S. 85, 91 (1979), and
the prohibition on using profile evidence as probable cause, see United States v.
$49,576.00 U.S. Currency, 116 F.3d 425, 427–28 (9th Cir. 1997), and that both
propositions were clearly established.
Even assuming plaintiffs’ Fourth Amendment rights were violated, such a
violation was not clearly established at the time. This second prong of the
qualified immunity analysis requires us to examine the “contours” of the plaintiffs’
Fourth Amendment rights to determine whether those particular rights were
“clearly established,” Hope v. Pelzer, 536 U.S. 730, 739 (2002), and ask whether a
“reasonable official” would have known that “what he [was] doing violate[d] that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Plaintiffs carry the
burden of showing that the law was clearly established at the time of the alleged
violation, see Davis v. Scherer, 468 U.S. 183, 197 (1984), and we define “clearly
established law” not at a high level of generality, but with a fair degree of
granularity, Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation omitted).
We agree with the district court’s analysis, and we find that the cases cited
by plaintiffs would not have provided defendants with notice in 2006 that their
conduct constituted an unconstitutional seizure in violation of plaintiffs’ Fourth
Amendment rights. The cases they cite are simply too general to have done so.
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See, e.g., Ybarra, 444 U.S. at 90 & n.2 (warrant that broadly directed the police to
search “the following person or place: . . . the Aurora Tap Tavern. . . . [a]lso the
person of ‘Greg’” was not supported by probable cause); $49,576.00, 116 F.3d at
427–28 (affidavit by arresting officer noting merely that “appellant fits a drug
courier profile” was insufficient for probable cause). “[P]robable cause requires
only a probability or substantial chance of criminal activity, not an actual showing
of such activity,” and “innocent behavior frequently will provide the basis for [it].”
Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). Although “profile” evidence that
“describe[s] a very large category of presumably innocent [persons]” does not
alone establish probable cause, Reid v. Georgia, 448 U.S. 438, 441 (1980) (per
curiam), the program at issue here identified transfers with an extremely high
statistical likelihood of a criminal nexus. Whether or not the warrants were
properly issued, we agree with the district court that defendants are entitled to
qualified immunity as to their service and execution.
2. Torres and Rivadeneyra argue that the district court ignored our
remand of their Due Process and Commerce Clause claims, and that the district
court erred in refusing to certify their class claims. As to the former argument,
even if those claims survived our remand, they are nonetheless meritless because
the claimed violations of the Due Process and Commerce Clauses are even less
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“clearly established” than the claimed violations of the Fourth Amendment for
which defendants are entitled to qualified immunity. As to the latter argument,
“the district court need not inquire as to whether [a] meritless claim should form
the basis of a class action.” Corbin v. Time Warner Entm’t-Advance/Newhouse
P’ship, 821 F.3d 1069, 1085 (9th Cir. 2016).
The judgment of the district court is AFFIRMED.
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