Dissenting:
I respectfully dissent.1
The bedrock of my dissent lies in the following declaration from Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), in which a class consisting of prison inmates sought an injunction mandating detailed, systemwide changes in ADOC’s2 prison law libraries and in its legal assistance programs.3 Id. at 349, 116 S.Ct. at 2179.
It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in *680such fashion as to comply with the laws and the Constitution. In the context of the present case: It is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur. Of course the two roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, or that will imminently be suffered, by a particular individual or class of individuals, orders the alteration of an institutional organization or procedure that causes the harm. But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the' status of being subject to a governmental institution that was not organized or managed properly.
Id. at 349-50, 116 S.Ct. at 2179.
In the case currently before us, class plaintiffs Durgin and Lopez represent an improperly multitudinous class that has neither been actually harmed nor faced with a threat of imminent harm. Thus, the proposed class runs afoul of the dictates of Lewis and its requirement of a threat of imminent harm.
Despite the Lewis holding, Durgin and Lopez now seek to represent two groups of uninjured persons, each numbering in the hundreds of thousands, if not millions. Dur-gin and Lopez describe the classes they seek to represent as follows:
... all persons who have been, are or will be traveling at night by motor vehicle on the highways of the State of Arizona, within the counties of Cochise, Graham, Green-lee, Maricopa, Pima, Pinal, Santa Cruz and Yuma; and all persons who are of Latin, Hispanic or Mexican appearance who have been, are, or will be travelling by motor vehicle on the highways of the State of Arizona, within the counties of Cochise, Graham, Greenlee, Maricopa, Pima, Pinal, Santa Cruz and Yuma.
Third Amended Complaint ¶ 12 (emphasis added).
A cursory glance at Rule 23 of the Federal Rules of Civil Procedure easily reveals that plaintiffs Durgin and Lopez cannot represent properly each of the individuals embraced in the enormous reach of the two classes described above.
First, the two named plaintiffs lack standing to serve as representatives of the proposed class. Class plaintiffs Durgin and Lopez each were stopped once by Border Patrol Agents (possibly, but not certainly, without reasonable articulable suspicion) without being arrested. Past injury, standing alone, is simply an insufficient basis upon which to obtain injunctive relief. To have standing to seek injunctive and declaratory relief Durgin and Lopez must demonstrate a great and immediate threat of future harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 106 n. 7, 103 S.Ct. 1660, 1667 n. 7, 75 L.Ed.2d 675 (1983). Yet the likelihood of future injury to these named plaintiffs is de minimis. The area concerned includes millions of drivers and Durgin and Lopez were stopped only once despite having driven many miles within the class area. This alone deprives Durgin and Lopez of standing to represent the multitude embraced by the above description of the class and is a sufficient basis to dismiss this appeal and direct the district court to dismiss the complaint.
Moreover, these classes embrace those who unquestionably were stopped properly on the basis of reasonable articulable suspicion, those who plainly were stopped improperly, and the multitude of both the “Latin, Hispanic or Mexican” appearing drivers, as well as the multitudes whose appearance is otherwise. Although these classes embrace numbers “so numerous that joinder of all members is impracticable,” Fed.R.Civ.P. 23(a)(1), there is not sufficient commonality of law or facts in the stops involving each purported class member to satisfy Federal Rule of Civil Procedure 23(a)(2) and (3).4
*681The district court properly held that the circumstances surrounding the stops of Dur-gin and Lopez lacked the required “commonality” and “typicality.” While it is true that the legal analysis employed in determining whether a Border Patrol stop is proper is applied to all such stops, it is equally true, as the district court pointed out, that the facts relevant to each stop are different. Of course, certain patterns of behavior are discernible by experienced observers; however, even appellate judges are aware that each case reaching them by reason of a Border Patrol stop is somewhat different from all the others. Each requires a close examination of the facts before either affirming or reversing the judgment of the district court.
It follows, therefore, that in this case appellants cannot show that “the party opposing the class has acted, or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Thus, the requirements of Rule 23(b)(2) are not met.
Assuming, albeit improperly, that Durgin and Lopez have standing to represent the hundreds of thousands, if not millions, embraced within the class descriptions, it is evident that the purpose of this suit is to secure a judicial order that mandates “the alteration of an institutional organization or procedure that causes the harm” and not the “granting relief against actual harm that has been suffered, by a particular individual or class of individuals.” Lewis, 518 U.S. at 349, 116 S.Ct. at 2179, 135 L.Ed.2d 606.
The district court properly refused to certify the class and granted summary judgment in favor of defendants. The putative class is fatally flawed and should not be able to proceed.
I.
THE RELEVANCE OF CITY OF LOS ANGELES v. LYONS
The two individuals who seek to serve as class representatives of a very large number of drivers urge that the district court oversee the reformation of the allegedly improper practices of the Border Patrol within the designated class area. To establish the need for such reformation, the majority, in an offhand manner, purport to rely on the Border Patrol’s “I-44s.” Even were the majority’s faith well-placed, which it is not, it cannot overcome the institutional limits of the Judiciary in the functioning of our tripartite government. Leiuis so teaches us.
This effort of the appellants also closely resembles that of the respondent in City of Los Angeles v. Lyons, who sought both damages and injunctive relief after being stopped for a traffic violation by police officers of the City of Los Angeles and being subjected to a “chokehold” which injured his larynx. The Supreme Court properly asked “whether the wrong was capable of repetition, yet evades review,” answered in the negative and denied injunctive relief. See 461 U.S. at 109, 103 S.Ct. at 1669, 75 L.Ed.2d 675. To have awarded such relief would have made available the sort of area-wide relief that class plaintiffs seek in this case. To this extent, Lyons cautions against the use of procedural devices, whether injunctions or class actions, to achieve substantial modifications of the police actions of the executive branch of government at both the state and federal level.
II.
LA DUKE AND NICACIO NOT APPLICABLE
Durgin and Lopez rely heavily on two cases of this circuit to support their position: LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), and Nicacio v. United States INS, 797 F.2d 700 (9th Cir.1985). It is clear that not only are the facts in this case different and less compelling than in LaDuke and Nicacio, but also these eases antedate the Supreme Court’s decision in Lewis, although not Lyons.
*682In LaDuke, this court reviewed a district court record far more compelling than the one presently before us when it affirmed a decision enjoining the INS from conducting farm and ranch checks of immigrant housing without warrants, probable cause or articula-ble suspicion. So different are the facts of LaDuke as to make that decision inapposite here. The district court in LaDuke “explicitly found that the defendants engaged in a standard pattern of officially sanctioned officer behavior violative of the plaintiffs constitutional rights.” LaDuke, 762 F.2d at 1324 (citation omitted). Here, the district court below specifically found “no evidence that Border Patrol agents have been authorized by Border Patrol supervisors to utilize impermissible profiles.” Durgin v. De La Vina, 174 F.R.D. 469 (D. Ariz.1997). This fact alone renders Durgin and Lopez’s attempt to bootstrap their claims onto La-Duke ’s holding unpersuasive.
In LaDuke, the court also found that the INS initiated regular searches of farm labor housing without warrants, probable cause or articulable suspicion. 762 F.2d at 1321. Again, this case reveals no such invasion of “housing communities” or homes or shelters. This case involves only stops of trucks and cars. Moreover, the testimony of the Border Patrol agents in LaDuke indicated that the agents “never had any specific information in advance (of the search),” and that they often “relied on notoriety or reputation.” Id. at 1327 n. 12. In this case, no such finding was made.
The district court in LaDuke found that the named plaintiffs had a “personal interest” or personal stake in being protected from improper searches and seizures and that the class had a “personal interest” at the commencement of the litigation. See id. at 1324-25. In determining the existence of such “personal interest,” the district court in LaDuke “made a specific finding of likely recurrence.” Id. at 1324.
Here, on the other hand, neither the named plaintiffs nor the class can make a sufficient “personal interest” showing necessary under the Article III case or controversy requirement. The district court below has made no specific finding that Durgin and Lopez and the class “face a real and immediate threat,” Lyons, 461 U.S. at 110, 103 S.Ct. at 1669, 75 L.Ed.2d 675, of being illegally searched.
The LaDuke court distinguished the Supreme Court’s decision in Lyons on the grounds that it was confronted with state activity whereas in LaDuke, as in this case, the alleged unconstitutional behavior was an instrumentality of the United States. This distinction lacks substance, however. The Fourteenth Amendment, as interpreted in this century, empowers the federal judiciary to protect an individual against a violation by a state, as well as the United States, of the fundamental rights guaranteed by the Bill of Rights. The principles of comity and federalism must yield to that amendment’s commands.
Nicacio v. INS is closely related in doctrine to LaDuke and again relied upon heavily by Durgin and Lopez in this case. While the facts of Nicacio are closer than LaDuke to the facts of this case, Nicacio nonetheless is too fundamentally different from this case to control our decision.
In Nicacio, this court affirmed a district court decision finding INS “stops without a warrant unlawful unless the agents have a ‘particularized reasonable suspicion based on specific articulable facts’ that a person in a vehicle is an illegal alien.” 797 F.2d at 701 (citations omitted). The district court in Nicacio held a bench trial considering the basic issue of whether “persons of Mexican, Latin, or Hispanic appearance” traveling by motor vehicle on the highways of the State of Washington were being stopped without “particularized reasonable suspicion based on specific articulable facts.” See Nicacio, 797 F.2d at 701 (internal quotation marks and citations omitted).5
Based on a wealth of persuasive evidence-primarily the testimony of several INS agents-the trial court in Nicacio concluded *683that the INS had repeatedly stopped several class members in the absence of reasonable articulable suspicion. See id. at 705-06. One agent, when asked to explain how he determined whether a person was an undocumented alien, testified that it was “hard to just say right off.” Id. at 705.
The facts of this case are not those of Nicacio, or, as discussed, LaDuke. First, in those cases the district court found an official INS policy of detaining individuals without reasonable articulable suspicion. In this case, the district court specifically found no evidence that Border Patrol agents were authorized by their supervisors to use improper profiles. See 3 CR 106 at p. 5.
Second, the reach of the “pattern and practice” in LaDuke and Nicacio was limited-it was confined to a discrete group of individuals where the predominant ethnic group is not Hispanic. This made it more likely that individual class members would suffer future injury. In the present case, the Border Patrol’s alleged “pattern and practice” encompasses a large swath of territory and an enormous group of individuals.6 Thus, even assuming the existence of a “pattern and practice,” it is far less likely that any individual class member will suffer future injury.
Third, in LaDuke and Nicacio the district court held a bench trial in which it considered the entire record and afforded the INS agents and their supervisors an opportunity to explain the basis upon which their stops were made. Only after complete consideration of the record did the court, based on the totality of the circumstances, find that the agents engaged in a pattern and practice of illegally detaining individuals without reasonable articulable suspicion.
In this case, the district court made no such finding. Nonetheless, the majority employs LaDuke and Nicacio to suggest strongly that the practices revealed in those cases were employed by the Border Patrol in the stops of the class plaintiffs in this ease. Under that assumption, it rejected the district court’s reliance on the fact that the class representatives, Hodgers-Durgin and Lopez, had been stopped only once despite having driven thousands of miles in southern Arizona.
The majority then observes:
A “chain of speculative contingencies” need not occur before the Border Patrol stops the Plaintiffs again. Plaintiffs merely must embark on a routine journey and pass a Border Patrol agent who, pursuant to the alleged pattern and practice decides to stop them for no legitimate reason.
See maj. op., p. 674. By this statement, the majority would as likely wager on a horse running at 1000 to one as one whose odds were two to one.
III.
DURGIN AND LOPEZ LACK STANDING TO REPRESENT THE PROPOSED CLASS
The majority fails to adequately address the issue of the standing of Durgin and Lopez to represent the interests of the proposed class. Durgin and Lopez do not present “questions of law or fact common to the class,” Fed.R.Civ.P. 23(a)(2), nor do they present claims “typical of the claims ... of the class,” Fed.R.Civ.P. 23(a)(3). The district court, therefore, properly denied class certification.
No 1-44 is prepared for the type of stop in which the class plaintiffs were involved. I-44s are only prepared when contraband, including illegal aliens, are discovered as a result of a stop.7 This fact gravely impairs, if not completely destroys, the standing of class plaintiffs Durgin and Lopez to represent those whose stops led to the preparation of an 1-44. Their only injury was to be inconvenienced by delay and perhaps to experience a sense of exasperation. Class actions, such as those authorized by Rule 23 of the Federal Rules of Civil Procedure, are not a proper vehicle for an uninvolved or unharmed good citizen to correct the possible abuses of power by public authorities. Kolender v. Lawson, 461 U.S. 352, 355 n. 3, 103 *684S.Ct. 1855, 1857 n. 3, 75 L.Ed.2d 903 (1983), is instructive. There the Supreme Court analyzed whether plaintiffs had standing to seek declaratory and injunctive relief with respect to an allegedly unconstitutional state statute. The Supreme Court stated:
We note that Lawson has been stopped on approximately 15 occasions pursuant to § 647(e), and that these 15 stops occurred in a period of less than two years. Thus, there is a “credible threat” that Lawson might be detained again under § 647(e).
Only one stop, whether proper or not, apparently suffices for the majority.
Durgin and Lopez are therefore not proper class representatives of those for whom stops resulted in discovery of contraband leading to either a return to Mexico or prosecution for smuggling. The “claims or defenses” of Durgin and Lopez are not “typical of the claims or defenses of the class” they seek to represent. Fed.R.Civ.P. 23(a)(3). They did nothing wrong; no defense is needed. The record indicates that no 1-44 was prepared with respect to their stops.8 Those for whom I-44s were prepared, numbering in the thousands, can make no such showing. They were doing something against the laws of the United States. It also follows that “the party opposing the class,” De La Vina, et al., has not acted against Durgin and Lopez “on grounds generally applicable to the class” that they seek to represent. Fed.R.Civ.P. 23(b)(2). Those whom Durgin and Lopez seek to represent have an interest in defeating prosecution for their wrongs. Durgin and Lopez have no such interest. Their general public concern about stops by the Border Patrol and their inconvenience arising from a single stop does not make them proper representations of the class.
IV.
THE MANAGEABILITY OF THE PROPOSED CLASS
LaDuke and Nicacio arose within a social, economic, and geographic situation quite different from that of this case. In those cases, Hispanic workers traveled long distances to secure seasonal work in the agricultural sector of the northwestern states. The predominant ethnic group in that area is not Hispanic. These circumstances contributed significantly to the Border Patrol’s readiness to disregard the constitutionally-required procedures in making stops of vehicles in which Hispanic farm workers were traveling. Such workers were easily recognized. Border Patrol agents, as a result, frequently, albeit improperly, assumed that any Hispanic person on the highway during the agricultural season was an illegal alien.
These circumstances also contributed to the manageability of the class actions in these cases. The focus of the litigation could be upon a non-indigenous group consisting of seasonal Hispanic agricultural workers largely centered in a confined area. No such adequate spatially and ethnically limiting circumstances exist in this case. Hispanic-appearing people are a large portion of the population of the southern half of Arizona. Of course illegal Hispanic workers exist in Arizona but a large number who perhaps so appear are citizens of the United States.
The majority, to repeat, creates a class of an indefinite number consisting of all the Hispanic-appearing persons (both legal and illegal) who drive in the day and all drivers, whatever their appearance, who drive at night. The geographic area embraced by this action extends over approximately one half of the State of Arizona with a population of approximately three million.
This bifurcated class, embracing much of that population could not function in a manner consistent with the structure of Rule 23 of the Federal Rules of Civil Procedure. For example, the required notice to class members necessarily would be by publication throughout the area. Live testimony perhaps would be limited to a few, perhaps a score or more of the alleged multitude who have been improperly stopped, drawn from the different counties embraced within the class region. The U.S. Department of Justice, representing the Border Patrol, would probably respond by setting forth its statistics of appropriate stops that led to the discovery of the contraband. In doing so it *685would point to the I-44s in support of its practices, but which, to repeat, do not exist for stops, whether proper or not, in which no contraband was discovered. This fact, to again repeat, makes any reliance by the majority on the existence of the I-44s to make the proposed class action more manageable largely a false hope. As a consequence, large numbers of persons, allegedly stopped improperly when no contraband was discovered, very likely would be deposed and their testimony offered for inclusion in the record. Anything less would not serve the purposes of the action that the representatives of the class contemplate. At some point agents and officials of the Border Patrol would be summoned to testify about their practices and attempts would be made to refute their testimony with incomplete I-44s. This is not a class action that will be easily managed nor will the I-44s reveal complete or reliably accurate information.
V.
THE TRUE NATURE OF I-US
Durgin and Lopez incorrectly insist that the class is so numerous “that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). This suggestion, to repeat, is based on the assertion that the I-44s need only be examined to establish that the Border Patrol does not adhere to constitutionally required procedures in its stops and searches of cars and trucks. This is an incorrect assumption.
I-44s are prepared by an official of the Border Patrol other than the officer who made the particular stop in which contraband was discovered. They well may be both incomplete and unreliable. The record of this case quite candidly describes the difficulty in preparing official experiences in attempting to obtain from the arresting officer a full and accurate description of the circumstances that prompted the officer to make the stop. Patrolling officers of the Border patrol are often not fluent writers of English, even though their skills at recognizing smuggling when they see it may be quite sharp.9 Nonetheless, the Border Patrol exerts specif-ie and continuing efforts to improve the performance of its officers in all respects. Vol. 4, U.S. Dist. Ct. Az. Tabs 5-11.
I-44s are intended only to serve the purpose of notifying other agencies, such as the INS, of the stop and to convey certain information pertaining to it.10 They do not purport to be a complete account of all the circumstances surrounding the stop.
I-44s, to repeat, are not legal briefs. They are not intended to demonstrate the presence of reasonable articulable suspicion in future court proceedings. They contain only a brief description of a stop that yielded contraband directed to the agency concerned such as the INS or the DEA. It is true that they do contain statements that appear frequently such as “the driver did not look at the agent,” the car or van “appeared heavy in the rear,” and the “driver gripped the steering wheel and refused to look at me.” On the other hand, they also contain statements such as “As I pulled along side, I saw bodies lying in the rear of the car,” and “the car did not exhibit any license plates,” neither of which appear too frequently.
However, an experienced agent is alert to certain patterns of behavior which he has observed frequently and which in the past has led to the detection of smuggling. These patterns, while consisting of multiple stimuli, to his experienced eye strongly suggest the presence of smuggling. There is nothing strange or unusual about this phenomena.
Football and basketball officials exhibit the same perception in their areas of work. They “see” things that the untrained eye does not. The crowd may howl, but they are usually right. The truth is that it is the context within which a particular feature appears that determines its meaning, relevance or force to the observer. Any musician, artist, writer, or, to repeat, any sports official knows this. Moreover, every experienced driver of an automobile has suddenly sensed the need to alter the existing pattern of driving because of the awareness of danger *686quite difficult to articulate precisely after the event. We merely call that “good driving.”
The psychology behind these phenomena has long been known as “gestalt psychology.” Multiple stimuli within a fixed space and time create an impression distinct from those of its separate parts. See Barbara A. Chernow & George A. Vallasi, The Columbia Encyclopedia 1077 (Columbia Univ. Press 5th ed.1993); The New Encyclopedia Britannica vol. 5, at 227 (15th ed.1998). Thus, it proves little to dissect a given stop set forth on an I-44 by the Border Patrol, and thereafter to conclude, because no single element amounts to reasonable articulable suspicion, that such could not exist. The observer’s mind and senses do not function that way. The observer, of course, must recall certain features of his experience for judicial purposes; however, for the same purpose judges must not ignore the teaching of “gestalt psychology.”
VI.
CONCLUSION
This action is, to repeat, an effort to initiate an investigation of the practices of the Border patrol by private parties.11 I return to Lewis v. Casey. Is a class action proceeding of this nature a proper function of the Judiciary? I submit that the proposed class action in this case is even less deserving that was that which was rejected by the Supreme Court in Lewis. The proper branches of government to manage the activities of the Border Patrol in southern Arizona are the Executive and Legislative branches, not the Judiciary. By granting injunctive relief, this Court has effectively usurped the managerial and supervisory functions of the political branches.
Protection of the borders of the United States from smuggling and illegal entries by foreign nationals is the primary responsibility of the Executive, while oversight of these functions is the responsibility of Congress. The Judiciary’s responsibility is, as stated in Lewis v. Casey, "... to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm....” 518 U.S. at 349, 116 S.Ct. at 2179, 135 L.Ed.2d 606. In this case the .named plaintiffs, while perhaps suffering slight harm, seek little or no personal relief but only an investigation and possible reform of the practices and policies of the Border Patrol in southern Arizona. To yield to their request would compromise the fundamental principles of the doctrine of Separation of Powers. Therefore, I vigorously dissent.
VII.
RESPONSE TO MAJORITY’S FOOTNOTES
Although an unusual measure, I feel compelled to respond to the majority’s criticisms of my dissent, point by point. I begin with three general observations. First, the majority does not afford proper deference to the Lyons opinion, which I believe controls the disposition of the standing issue. Durgin and Lopez have encountered the Border Patrol once each; they provide no evidence in the record to indicate that there was even a remote chance that the Border Patrol would again subject them to another stop without reasonable articulable suspicion. Based on the record, we cannot confer standing upon them. They travel a highway which encompasses eight counties, serves a population by three million individuals and spans half the State of Arizona. Because Durgin and Lopez have “made no showing that [they are] realistically threatened by a repetition of [their] experience ... [they have] not met the requirements for seeking an injunction in federal court, whether- the injunction contemplates intrusive structural relief or the cessation of a discrete practice.” Lyons, 461 U.S. at 109, 103 S.Ct. at 1669, 75 L.Ed.2d 675.
Second, the majority makes much ado about the fact that Durgin and Lopez do not have the benefit of a well developed record. In my opinion, that’s much ado about nothing. Like every litigant, Durgin and Lopez had the opportunity to develop the record at the class certification and summary judg-*687merit stages, yet they failed to take advantage of that opportunity. It is not our job to ask: “What if counsel did a better job in preserving the record?” rather, we must examine the record as it is. Durgin and Lopez have to work with the record as preserved by their trial counsel, no matter how good or bad.
Finally, and perhaps most importantly, is the message that the majority conveys in its opinion. The majority apparently condones, based upon two stops of two individuals, a massive investigation and probable oversight of the activities of the Border Patrol. The majority signals this Court’s willingness to micromanage other branches of government based upon an inclination not supported by a factual record-a clear breach of the Separation of Powers principle.
It is unfortunate, but where the incidence of crime is high, some innocent individuals will be suspected. That is the price that the high rate of crime has placed on our society. The majority apparently rather would embrace chaos.
I now turn to the particulars:
Footnote 2:
My discussion of gestalt psychology does not abrogate the rule of reasonable articula-ble suspicion. It merely explains that specific perceptions impart meaning to the viewer or listener and from that mixture comes meaning and a total perception. I by no means imply that gestalt psychology satisfies reasonable articulable suspicion.
Footnote 3:
The majority misses the forest for the trees in its examination of I~44s. I simply note that a mere examination of I-44s does not get you far. They do not reflect the entire truth of every stop. More importantly, the forms are not intended to record the details of every stop or to record the elements of reasonable articulable suspicion. I-44s are intended only to serve the purpose of notifying other agencies of the stop and to convey certain information pertaining to it.
That some phrases in some I-44s mirror each other does not mean much. Of course an individual who is required to follow a form, time and time again, will use the same phrase over and over. As judges, we’re all familiar with the phrase: “We have jurisdiction pursuant to § 1291, and affirm.” The fact that it appears in a great number of opinions does not, in and of itself, mean that the conclusion is false. Legal writing, like preparing I-44s, is not always an exercise in original thought.
Footnote 7:
If statistical probabilities are not relevant in determining standing, why should even one stop be required? Perhaps the majority would argue that an Arizona driver who never had been stopped would have standing to bring this suit.
Footnote 8:
Unfortunately for Durgin and Lopez, the record is not developed sufficiently to make the leap that the majority suggests we make. The record only provides that the two named plaintiffs were stopped once each. This alone does not justify a massive investigation into the Border Patrol’s activities. See Lyons, 461 U.S. at 109, 103 S.Ct. at 1669, 76 L.Ed.2d 675.
The majority inappropriately presupposes that Durgin and Lopez can establish a pattern of improper conduct. There is no such evidence and plaintiffs should not be allowed to engage in massive discovery to “uncover” this alleged pattern.
The evidence in this case merely demonstrates that the named plaintiffs were each stopped once. Construe those facts as strongly as one likes, they do not establish, or even suggest, an unlawful pattern and practice. The majority’s imagination or, at best, suspicion, is being relied on to remedy the deficiencies of the pleadings.
Footnote 9:
I agree that the record in LaDuke was stronger. First, plaintiffs here had the opportunity to develop a stronger record and failed.
Second, Judge Roll concluded that plaintiffs presented “no evidence that Border Patrol agents have been authorized by Border Patrol supervisors to utilize impermissible profiles” despite repeated concerns of the *688district court. See Durgin v. De La Vina, 174 F.R.D. 469 (D. Ariz. 1997). The district court held that the case did not deserve to proceed to a bench trial because plaintiffs failed to present any evidence to support their allegations. Suspicion of a “passively tolerated pattern” is not enough. Nor is it proper at the summary judgment stage to accept plaintiffs’ claims on the grounds that the “missing pieces” of these claims will turn up during the trial. To so proceed would defeat the purpose of the summary judgment procedure. Full discovery by the parties prior to summary judgment, with such proper amendments of the complaint as discovery permits, is the proper procedure. The failure of the plaintiffs in this case to state a cause of action entitles the defendants to summary judgment.
Third, I never suggested that “stops of cars and trucks” do not deserve Fourth Amendment protection or are “unworthy of judicial redress.” I am sure that the majority is aware that the Fourth Amendment shield affords greater protections for an individual’s home than his car or truck. Compare Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (search of house) with Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (search of automobile).
Fourth, I have not suggested that we disregard relevant precedent. I merely pointed out that in the framework of LaDuke and Nicacio, the distinction between state and federal enforcement activities did not alone control the outcome of those cases. Where the plaintiffs in this case have failed to establish: (1) “a likelihood of recurrent injury,” LaDuke, 762 F.2d at 1324; (2) “a standard pattern of officially sanctioned officer behavior,” id.; and (3) “the requisite personal stake” in the outcome of the litigation, id. at 1325; the mere fact that we are dealing with federal, rather than state, law enforcement “lacks substance.”
It is the majority, not the dissent that seeks to cast aside relevant precedent. The majority “ignores and brushes aside” the Supreme Court’s dictates in Lewis v. Casey: “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” 518 U.S. at 349, 116 S.Ct. at 2179, 135 L.Ed.2d 606. To repeat, Durgin and Lopez have not presented a record to support judicial intervention with the Border Patrol-they have not demonstrated adequate harm. For that reason, the action must fail.
Footnote 10:
Again, I concur with Judge Roll’s conclusion that plaintiffs did not and cannot, on the record, establish an unlawful pattern or practice by the Border Patrol. See Durgin v. De La Vina, 174 F.R.D. 469 (D.Ariz.1997). The majority once more acknowledges plaintiffs have not stated a claim and asserts the plaintiffs might do so in a trial. That simply is not enough to survive summary judgment.
Footnote 11:
I again contend that the Supreme Court’s decision in Lyons remains applicable and resembles the facts of this ease closely. Under Lyons, a plaintiff must make a “showing that he is realistically threatened by a repetition of his experience.” 461 U.S. at 109, 103 S.Ct. at 1669, 75 L.Ed.2d 675. Why is it necessary that repetition of being stopped depends on being stopped properly? Being stopped, properly or not, would enable the police to use the chokehold.
Lyons said it was petitioner’s failure to show that he faced a likelihood of being stopped, improperly or properly, that fatally flawed his claim. Here, it is Durgin and Lopez’s failure to demonstrate a likelihood of being stopped again by the Border Patrol that fatally flaws their case. This deficiency cannot be supplied by merely pleading “a pattern of unconstitutional stops.” Evidence that supports the existence of this pattern is necessary.
The pleading difficulties which the plaintiffs encounter underscore the wisdom of Lewis v. Casey, supra.
Footnote 1É:
Again, the majority proposes that Durgin and Lopez can place the Border Patrol in *689judicial receivership merely because they were each stopped once. Lewis prohibits this.
The majority applies Lems incorrectly. To repeat, assuming that Durgin and Lopez have standing (i.e., that they have established “actual injury”), Lems requires us to ask whether there is such a systemwide deficiency to justify a federal court’s decision to intervene, alter “an institutional organization or procedure,” and impose “systemwide relief.” 518 U.S. at 349, 359, 116 S.Ct. at 2179, 2184, 135 L.Ed.2d 606.
Footnote 16:
Notwithstanding the majority’s assertions to the contrary, the record clearly demonstrates the true nature of the 1-44 forms. I-44s are used by the Border Patrol to provide information to other agencies. “An 1-44 is conducted when you’re turning it over to someone else or you want to report something to the chief of a detainment for prosecution. For prosecution an I-JU. is not utilized.” 3 CR at 85 (Deposition of Alfredo Casillas). I rest my conclusion regarding the I-44s upon the evidence presented to this Court, as reflected by the record.
Footnote 17:
Again, I contend that the I-44s cannot be relied upon by the named class representatives because no 1-44 was prepared for the type of stops in which class plaintiffs were involved-they are only prepared when contraband is discovered. As a result, class plaintiffs do not satisfy the dictates of Federal Rule of Civil Procedure 23.
We conclude where we began. No system of highway surveillance can ensure that the Border Patrol only stop the guilty. To condemn, as the majority does, stops of the innocent is to condemn the system, which is designed to, and does to some degree, enforce the law.
Plaintiffs attempt to use this class action as a vehicle to condemn the Border Patrol-an agency within the executive branch of government-an attempt which the majority apparently embraces. Class actions do not, however, provide courts with an opportunity to usurp the functions of the political branches-partieularly where there is no basis for such a remedial decree in the first place. As the head of our own branch reminds us, “[ejourts have no power to presume and remediate harm that has not been established.” Lewis, 518 U.S. at 361, n. 7, 116 S.Ct. at 2185 n. 7, 135 L.Ed.2d 606.
. Although an unusual measure, I respond to the majority’s criticisms of this dissent, infra, section VII.
. Arizona Department of Corrections.
.Class plaintiffs in Lewis alleged that prison authorities furnished them with inadequate legal research facilities in violation of the Constitution. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (setting forth requirements for prison law research facilities).
. Federal Rule of Civil Procedure 23(a) reads as follows:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder *681of all numbers is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
. The class was made up of "[a]ll persons of Mexican, Latin, or Hispanic appearance who have been, are, or will be travelling by motor vehicle on the highways of the State of Washington.” See Nicacio, 797 F.2d at 701 (internal quotation marks and citations omitted).
. The 1990 census indicates that there are nearly three million residents in the eight counties making up the plaintiffs’ proposed classes.
. Deposition of Robert C. Cole, 3 CR 98 at p. 81.
. See discussion infra Parts IV and V.
. See Deposition of Thomas M. O’Leary, 3 CR at 86.
. See Blank 1-44 form, 3 CR at 86.
. Deposition of Ronald E. Sanders, 4 CR, Tab 12, clearly reveals the far-ranging nature of the inquiry this action contemplates.