Claims Against|Border Patrol Survive


     SAN DIEGO (CN) – The United States and a border patrol officer must face claims from a man who claims the officer arrested him without probable cause and did a knee-drop on his face, a federal judge ruled.
     Eloy Olivas claim Customs and Border Protection Officer Charles Jones illegally arrested him and kneed him in the face at the border on Jan. 15, 2010.
     Olivas was driving his pickup truck near Calexico in Imperial County, on his way to Mexico, when several CBP officers made him pull over to an inspection area.
     There, defendant Officer Charles Jones approached Olivas’ truck with a dog and tried to make it jump up into the truck bed, according to Olivas’ amended complaint.
     When Olivas yelled out the window that the dog was scratching his truck, Officer Jones responded, “‘Stay inside your vehicle and keep your mouth shut,'” U.S. District Judge William Q. Hayes wrote in his order, citing Olivas’ first amended complaint.
     Continuing to quote from the complaint, Judge Hayes’ order states: “Moments later, Officer Jones opened the driver’s door of Mr. Olivas’ truck, grabbed Mr. Olivas, and pulled him out of the truck. … Officer Jones then slammed Mr. Olivas into the side of the truck, threw him to the ground face down, and dropped his knee onto the side of Mr. Olivas’ face.
     “Mr. Olivas screamed in pain and asked Officer Jones to stop the attack. Mr. Olivas also stated that he was a retired peace officer and repeatedly said, ‘I am not resisting.’ Ignoring these statements, Officer Jones nonsensically said, ‘Do not resist,’ and then handcuffed Mr. Olivas.
     “Other CBP officers then grabbed Mr. Olivas, though he had not been, and was not, resisting in any manner. In addition, the dog viciously growled at Mr. Olivas and had to be pulled away to prevent it from attacking him.
     “Mr. Olivas was then taken to an isolated area where he was frisked by CBP officers and detained for approximately one-half hour. He was then released with no explanation for the officers’ conduct.”
     Olivas and his wife sued the United States and Jones for false imprisonment, battery, excessive force, unconstitutional search and seizure, negligence, intentional infliction of emotional distress and loss of consortium.
     The United States defended Jones in a certification filed in October 2012. It claimed Jones had been acting within his scope as a Customs agent, and substituted itself for Jones in regard to six causes of action. It sought dismissal of those claims and three others.
     Judge Hayes granted dismissal of seven charges: false arrest, battery, negligence, intentional infliction of emotional distress, loss of consortium, conspiracy, and violation of a California Civil Code – the last because the Olivas did not oppose the government’s substitution of itself for Jones.
     But Hayes let two claims for unconstitutional search and seizure survive.
     The parties disputed which of Jones’s actions against Olivas were included in those claims.
     The government claimed they refer only to Olivas’ frisking and half-hour detention. It claimed those are routine elements “in the context of a border stop” and are “protected by qualified immunity because they did not violate the Constitution and were reasonable,” Hayes wrote.
     The Olivas disagreed, claiming the two causes of action apply to the entire incident. Olivas claims he was “detained after he was beaten and seized, with no probable cause or reasonable suspicion to support that detention,” and his frisking after arrest was done without probable cause.
     The government claimed that precedent grants it more flexibility on the Fourth Amendment during searches at international borders. The government acknowledged that it needs probable cause to arrest someone, but said it does not need probable cause to initiate routine searches.
     Hayes credited this reasoning, but took issue with its application.
     “The first amended complaint specifically alleges that Eloy Olivas was ‘frisked by CBP officers.’ Although a pat-down search may not transform a detention into an arrest requiring probable cause, a pat-down search at the border requires ‘minimal suspicion.’ Viewing the allegations of the first amended complaint in the light most favorable to plaintiffs, the court finds that the first amended complaint adequately alleges that defendants did not possess minimal suspicion that plaintiff Eloy Olivas was involved in criminal activity,” Hayes wrote, denying the government’s motion to dismiss. (Citations omitted).
     He granted the government’s motion to dismiss one of the three Fourth Amendment claims, finding it duplicates another of those three claims.
     “Even if the eighth cause of action was not redundant, without more, a 30-minute detention is ‘routine’ within the context of a suspicionless border stop and does not violate the Fourth Amendment,” Hayes added, citing the 9th Circuit ruling in United States v. Bravo.
     Hayes granted the government’s motion to dismiss a conspiracy claim: that Jones and the other CBP agents conspired to deprive Olivas of his civil rights and conceal their misdeeds.
     “Based solely upon the allegations of the first amended complaint, the court finds that the allegations of conspiracy in the eleventh cause of action constitute ‘labels and conclusions,’ and ‘the non-conclusory factual content, and reasonable inferences from that content,’ are not ‘ plausibly suggestive of a claim entitling the plaintiff to relief,” Hayes wrote. (Citations omitted).
     He also granted the motion to dismiss the Olivas’ request for attorney’s fees, as the United States did not waive its sovereign immunity against such claims under the Federal Tort Claims Act.
     Hayes scheduled the final pre-trial conference for May 24.

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