Immunity Over Wire-Transfer Seizures Debated in 9th Circuit

PASADENA, Calif. (CN) – The Ninth Circuit heard arguments Thursday morning that Arizona prosecutors did not have qualified immunity in serving and executing a pair of warrants for the seizure of Western Union transfers they claimed stemmed from human smuggling.

Lead plaintiff Javier Torres brought a class action against then-Arizona Attorney General Terry Goddard and Assistant Attorney General Cameron Holmes in 2006, claiming the state’s seizure of more than $9 million in Western Union transfers was unconstitutional.

According to the suit, the seizures were conducted without probable cause that the wire transfers stemmed from criminal activity. A judge later denied class certification.

From 2001 to 2006, Arizona officials executed more than 20 warrants to seize wire transfers that they said were likely related to an increase in undocumented immigrants smuggled into the United States.

In 2015, the Ninth Circuit found that Goddard and Holmes had immunity for the preparation of warrants that led to the seizures, but not for warrants’ execution.

U.S. District Judge Stephen McNamee followed up that ruling last year by finding the prosecutors had qualified immunity in the service and execution because the warrants did not violate the plaintiffs’ constitutional rights.

“The record in this case requires a finding of no constitutional violation because defendants acted reasonably in service and execution of the warrants believing that the warrants were supported by probable cause,” McNamee wrote. “In support, two Maricopa County Superior Court judges, Judge James Keppel and Judge Brian Ishikawa, after reviewing the supporting affidavits and materials, both found probable cause and issued the challenged warrants.”

Kate Schwartz, an attorney for the plaintiffs, told a three-judge panel of the Ninth Circuit on Thursday that the case amounts to “dramatic state overreach.” She said the warrants were only premised on “profile evidence.”

If the transfers were sent from certain states to Arizona, met or exceeded $500 to $2,000, and were made during three or four weeks in the spring or fall, they met thresholds placed by the Attorney General’s Office for seizure.

Circuit Judge Alex Kozinski pointed out that Arizona found 90 percent of the money seized was to be used in criminal activity.

“The attorney general’s office treated these funds as they were guilty,” Schwartz told the court.

Circuit Judge Jay Bybee cited a number of judges who have upheld the actions of Goddard and Holmes over the last decade.

“We would have to declare that all of those jurists behaved unreasonably,” Bybee told Schwartz.

Schwartz said rulings issued by other judges shouldn’t factor into the Ninth Circuit’s decision.

“The qualified immunity inquiry is focused on what the defendants knew,” she explained.

Arizona Solicitor General Dominic Draye argued that in the case of many wire transfers, you don’t have a person that you know anything about.

“When you pile up enough of this evidence … the confluence of all those factors can produce probable cause,” Draye argued.

The panel did not indicate when it would rule.

 

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