Miguel Reynaga Hernandez v. Derrek Skinner

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIGUEL ANGEL REYNAGA No. 19-35513

HERNANDEZ,

Plaintiff-Appellee, D.C. No.

1:18-cv-00040-

v. SPW

DERREK SKINNER, in his individual

capacity,

Defendant-Appellant,

and

PEDRO HERNANDEZ, in his individual

capacity,

Defendant.

2 REYNAGA HERNANDEZ V. SKINNER

MIGUEL ANGEL REYNAGA No. 19-35514

HERNANDEZ,

Plaintiff-Appellee, D.C. No.

1:18-cv-00040-

v. SPW

PEDRO HERNANDEZ, in his individual

capacity, OPINION

Defendant-Appellant,

and

DERREK SKINNER, in his individual

capacity,

Defendant.

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Argued and Submitted March 2, 2020

Portland, Oregon

Filed August 10, 2020

Before: Roger L. Wollman, * Ferdinand F. Fernandez,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

*

The Honorable Roger L. Wollman, United States Circuit Judge for

the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

REYNAGA HERNANDEZ V. SKINNER 3

SUMMARY **

Civil Rights

The panel affirmed the district court’s order, on

summary judgment, denying qualified immunity to

defendants in an action brought pursuant to 42 U.S.C. § 1983

alleging that plaintiff’s Fourth Amendment rights were

violated when he was stopped and arrested without

reasonable suspicion or probable cause.

Plaintiff was arrested after a witness in a courtroom

testified that plaintiff, who had accompanied his wife to the

hearing to serve as a witness, was not a legal citizen. On the

basis of this statement, defendant Pedro Hernandez, the

Justice of the Peace presiding over the hearing, requested

that plaintiff be “picked up” by the local Sheriff’s Office.

Defendant, Deputy Sheriff Derrek Skinner, subsequently

detained plaintiff to question him regarding his immigration

status, placed plaintiff in handcuffs, searched his person, and

escorted him to a patrol car outside the courthouse.

The panel first noted that, unlike illegal entry into the

United States—which is a crime under 8 U.S.C. § 1325—

illegal presence is not a crime. See Martinez-Medina,

673 F.3d 1029, 1036 (9th Cir. 2011). Therefore, “because

mere unauthorized presence is not a criminal matter,

suspicion of unauthorized presence alone does not give rise

to an inference that criminal activity is afoot.” Melendres v.

Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012). Because

Melendres and Martinez-Medina controlled and defendant

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 REYNAGA HERNANDEZ V. SKINNER

Skinner failed to demonstrate that he had a particularized

and objective basis for believing criminal activity was afoot,

the panel affirmed the district court’s holding that Skinner

violated the Fourth Amendment when he seized plaintiff by

Terry-stopping and then arresting him without reasonable

suspicion or probable cause, respectively.

The panel further held that under either the proximate or

the but-for standard of causation, defendant Hernandez was

an integral participant in the violation of plaintiff’s

constitutional rights. The panel held that plaintiff’s right to

be free from unlawful stops in this circumstance had been

established since at least 2012, by which time both

Melendres and Martinez-Medina were law of the circuit.

COUNSEL

Levi A. Robison (argued), Melissa A. Williams, and Mark

A. English, Deputy Yellowstone County Attorneys, Billings,

Montana, for Defendants-Appellants.

Matt Adams (argued), Leila Kang, Aaron Korthuis, and

Anne Recinos, Northwest Immigrant Rights Project, Seattle,

Washington; Shahid Haque, Border Crossing Law Firm

P.C., Helena, Montana; for Plaintiff-Appellee.

REYNAGA HERNANDEZ V. SKINNER 5

OPINION

PAEZ, Circuit Judge:

In late 2017, a witness in a courtroom in Billings,

Montana, testified that one of the other witnesses, Miguel

Reynaga Hernandez (“Reynaga”), was “not a legal citizen.”

On the basis of this statement, the Justice of the Peace

presiding over the hearing spoke with the local Sheriff’s

Office and asked that Reynaga be “picked up.”

Deputy Sheriff Derrek Skinner responded to the call.

Outside the courtroom, Skinner asked Reynaga for

identification and questioned him regarding his immigration

status in the United States. Reynaga produced an expired

Mexican consular identification card but was unable to

provide detailed information regarding his immigration

status because he does not speak English fluently. Skinner

then placed Reynaga in handcuffs, searched his person, and

escorted him to a patrol car outside the courthouse. With

Reynaga waiting in the back of the patrol car, Skinner ran a

warrants check and, after Reynaga’s record came back clean,

asked Immigrations and Custom Enforcement (“ICE”) if the

agency had any interest in Reynaga. Reynaga was ultimately

taken to an ICE facility and remained in custody for three

months.

Upon his release, Reynaga sued Skinner and Pedro

Hernandez, the presiding Justice of the Peace

(“Hernandez”), under 42 U.S.C. § 1983 for violating his

Fourth Amendment rights. On cross-motions for summary

judgment, the district court denied each defendant qualified

immunity and held that Reynaga’s Fourth Amendment rights

had been violated. Skinner and Hernandez interlocutorily

appeal the court’s denial of qualified immunity. We affirm.

6 REYNAGA HERNANDEZ V. SKINNER

I.

A.

The testimony precipitating Reynaga’s arrest occurred

during a hearing on a civil order of protection. Jane Reynaga

Hernandez (“Jane”) had filed a request for a protection order

against Rachel Elizondo (“Rachel”) in the Yellowstone

County Justice Court in Billings, Montana. Jane’s husband,

plaintiff-appellee Reynaga, accompanied her to the hearing

to serve as a witness.

On the morning of the hearing, Hernandez asked

Reynaga and another witness to wait outside the courtroom

before they testified. Rachel then took the stand. During her

testimony, she stated that Reynaga was “not a legal citizen.”

She made a similar statement about the other witness waiting

with Reynaga. She did not testify that either witness had

unlawfully entered the United States nor describe their

manner of entry.

At the conclusion of Rachel’s testimony, Hernandez

responded, “What I’m hearing here are allegations about

illegal immigrant [sic].” He directed his staff, “call me a

deputy. I have two illegals sitting outside. I want them

picked up.” Once his staff connected him to the Sheriff’s

Office, Hernandez requested the Office to “send me a couple

of deputies. I have two illegal immigrants out in the hallway

. . . they are in the hall. Get them here as quickly as

possible.”

After speaking on the phone with the Sheriff’s Office,

Hernandez denied Jane’s request for an order of protection

and told both Jane and Rachel that he would hold them in

contempt of court and arrest them if they tried to leave the

courtroom. He wanted to prevent Jane and Rachel from

REYNAGA HERNANDEZ V. SKINNER 7

leaving because he “believed that they might tell [Reynaga

and the other witness] that a deputy was on the way to

investigate their immigration status and they would flee.”

The Sheriff’s Office relayed Hernandez’s request to

Skinner, a deputy sheriff at the time. The Office informed

Skinner that Hernandez had called regarding “two illegal

immigrants outside his courtroom that he wants picked up.”

Skinner was dispatched to the courthouse. When he entered

the courtroom, Hernandez told him, “the information I have

from them two under oath, they are illegal aliens.” Skinner

replied he would “take care of it.” Hernandez then told him,

“see what happens. If you guys take them, let me know

please,” and advised that Skinner “may have to call

immigration . . . their testimony from the witness stand is

they are illegal.”

Skinner stepped into the hallway outside the courtroom

and asked Reynaga for identification and his immigration

status. Reynaga handed Skinner an expired Mexican

consulate identification card but—because Reynaga does

not speak English fluently—was unable to provide detailed

information regarding his immigration status. His

identification card from the Mexican consulate does not

indicate his immigration status, either in Mexico or in the

United States.

Reynaga then tried to enter the courtroom to reach his

wife, but Skinner blocked his path and handcuffed him.

Skinner searched Reynaga’s person and, after failing to find

anything, removed Reynaga from the courthouse and placed

him into a patrol car outside. While Reynaga sat handcuffed

in the patrol car, Skinner ran a warrants check. There were

no outstanding warrants for Reynaga. Skinner then asked

the Yellowstone County Dispatch if ICE “wanted him.” An

ICE agent returned Skinner’s call and asked Skinner to

8 REYNAGA HERNANDEZ V. SKINNER

transport Reynaga to the Yellowstone County Detention

Facility.

Reynaga was placed in ICE custody. After three months

of being transported between various detention facilities, the

Department of Homeland Security dismissed the deportation

proceeding it had commenced against Reynaga.

B.

After being released from detention, Reynaga filed suit

under 42 U.S.C. § 1983 in the District Court of the District

of Montana against Hernandez and Skinner, alleging that

they violated his constitutional rights under color of state

law. See Hernandez v. Skinner, 383 F. Supp. 3d 1077, 1082

(D. Mont. 2019). He seeks compensatory and punitive

damages and a declaratory judgment that the two violated

his Fourth Amendment rights. Id.

The parties cross-moved for summary judgment on the

section 1983 claims, punitive damages, and request for

declaratory relief. Id. The district court concluded that the

material facts underlying Reynaga’s Fourth Amendment

claims and Hernandez’s and Skinner’s affirmative defense

that they were entitled to qualified immunity were

undisputed. Id. at 1082–86. The court then proceeded to the

merits of those claims, holding that Skinner had violated

Reynaga’s constitutional rights because he lacked either

reasonable suspicion or probable cause that Reynaga was

involved in criminal activity, id. at 1083–85, and Hernandez

violated Reynaga’s Fourth Amendment rights because he

was an “integral participant” in Skinner’s unlawful actions,

id. at 1085–86.

Relying on our caselaw holding that “illegal presence . . .

does not, without more, provide probable cause of the

REYNAGA HERNANDEZ V. SKINNER 9

criminal violation of illegal entry,” id. at 1086 (citing

Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir.

2011)), the court held that Reynaga’s Fourth Amendment

rights were clearly established at the time of the alleged

offense, and denied both Hernandez and Skinner qualified

immunity, id. at 1086–87. The court did not address

Reynaga’s request for punitive damages because it found

there were outstanding genuine issues of fact regarding

Hernandez’s and Skinner’s intent. Id. at 1087–88.

Hernandez and Skinner interlocutorily appeal the court’s

denial of qualified immunity. They argue that the district

court erred by holding that Reynaga’s Fourth Amendment

rights were violated by Hernandez and Skinner, Hernandez

was an integral participant in Reynaga’s unlawful seizure,

and Reynaga’s rights were clearly established at the time of

the alleged offenses.

II.

We have jurisdiction over Hernandez’s and Skinner’s

appeals under 28 U.S.C. § 1291. An order denying a motion

for summary judgment is not typically a “final decision”

within the meaning of section 1291, but “that general rule

does not apply when the summary judgment motion is based

on a claim of qualified immunity.” Plumhoff v. Rickard,

572 U.S. 765, 771 (2014). “[P]retrial orders denying

qualified immunity generally fall within the collateral order

doctrine.” Id. at 772.

Jurisdiction in such cases is limited to “questions of law

and does not extend to claims in which the determination of

qualified immunity depends on disputed issues of material

fact.” Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001).

We review de novo any questions of law underlying the

denial of qualified immunity. Wilkins v. City of Oakland,

10 REYNAGA HERNANDEZ V. SKINNER

350 F.3d 949, 954 (9th Cir. 2003). Where disputed facts do

exist, we determine whether the denial of qualified immunity

was appropriate by evaluating the facts in the light most

favorable to the non-moving party. Jeffers, 267 F.3d at 903.

III.

Hernandez and Skinner present a single question on

appeal: whether the district court erred in denying them

qualified immunity. Reynaga brought his claims under

section 1983, which confers a tort remedy upon individuals

“whose constitutional rights have been violated by state

officials acting ‘under color of’ law.” Whalen v. McMullen,

907 F.3d 1139, 1145 (9th Cir. 2018) (quoting 42 U.S.C.

§ 1983). Public officials—including police officers and

judges—are qualifiedly immune from suit 1 under section

1983 except where the violation should have been obvious

1

Judges are also entitled to absolute immunity from damages suits.

See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734–

35 (1980). Absolute judicial immunity “insulates judges from charges

of erroneous acts or irregular action.” Curry v. Castillo (In re Castillo),

297 F.3d 940, 947 (9th Cir. 2002). A judge is not immune for

“nonjudicial actions, i.e., actions not taken in the judge’s judicial

capacity,” or for “actions, though judicial in nature, taken in the complete

absence of all jurisdiction.” Harvey v. Waldron, 210 F.3d 1008, 1012

(9th Cir. 2000) (internal quotation marks omitted), overruled in part on

other grounds by Wallace v. Kato, 549 U.S. 384, 393–94 (2007).

However, neither here nor in the district court did Hernandez argue

that he is entitled to judicial immunity. He has therefore waived any

such defense. See, e.g., Siegert v. Gilley, 500 U.S. 226, 231 (1991)

(“Qualified immunity is a defense that must be pleaded by a defendant

official.”); Sablan v. Dep’t of Fin., 856 F.2d 1317, 1321 (9th Cir. 1988)

(“On appeal, the various government officials who are named in their

individual capacity do not raise any claim of absolute or qualified

immunity. We will therefore treat any potential claims of official

immunity as waived.”).

REYNAGA HERNANDEZ V. SKINNER 11

to the official because the right at issue was “clearly

established.” Id. (citing Mitchell v. Forsyth, 472 U.S. 511,

525 (1985)).

To determine whether an official is entitled to qualified

immunity, we evaluate whether (1) the alleged facts

constitute a violation of a constitutional right, and (2) the

constitutional right was clearly established at the time of the

violation. Mitchell v. Washington, 818 F.3d 436, 443 (9th

Cir. 2016). We address each factor in turn.

A.

We first consider whether the district court erred in

holding, on the basis of the nondisputed material facts, that

Hernandez and Skinner violated Reynaga’s constitutional

rights. The Fourth Amendment to the United States

Constitution protects individuals against “unreasonable

searches and seizures.” U.S. Const. amend. IV. There are

two categories of police seizures under the Fourth

Amendment: Terry stops and full-scale arrests. See Allen v.

City of Portland, 73 F.3d 232, 235 (9th Cir. 1995).

Under Terry v. Ohio, 392 U.S. 1 (1968), police officers

may conduct a brief, investigative stop of an individual when

they have reasonable suspicion that the “person apprehended

is committing or has committed a criminal offense.” Arizona

v. Johnson, 555 U.S. 323, 326 (2009). We examine the

“totality of the circumstances” to determine whether a

detaining officer has a “particularized and objective basis”

for suspecting criminal wrongdoing. United States v. Arvizu,

534 U.S. 266, 273 (2002) (internal quotation marks omitted).

An officer cannot rely only upon generalizations that “would

cast suspicion on large segments of the lawabiding

population.” United States v. Manzo-Jurado, 457 F.3d 928,

935 (9th Cir. 2006). “Seemingly innocuous behavior,”

12 REYNAGA HERNANDEZ V. SKINNER

unless combined with other circumstances indicating

criminality, does not justify a Terry stop. Id.

During a Terry stop motivated by reasonable suspicion,

the officer may ask investigatory questions, but the “scope

of the detention must be carefully tailored to its underlying

justification.” Florida v. Royer, 460 U.S. 491, 500 (1983).

A stop for the purposes of investigating unlawful

immigration “usually consume[s] less than a minute and

involve[s] a brief question or two.” Dunaway v. New York,

442 U.S. 200, 210–11 (1979) (internal quotation marks

omitted).

The second category of police seizures are arrests. An

arrest must be supported by probable cause to believe that

the person being arrested has committed a crime. See Allen,

73 F.3d at 236 (citing Henry v. United States, 361 U.S. 98,

102 (1959)). Probable cause is more difficult to establish

than reasonable suspicion, and is determined at the time the

arrest is made. Arvizu, 534 U.S. at 273–74; Allen, 73 F.3d

at 236. It must be based on “reasonably trustworthy

information sufficient to warrant a prudent person in

believing that the accused had committed or was committing

an offense.” Allen, 73 F.3d at 237 (internal quotation marks

omitted). Like reasonable suspicion, it can “only exist in

relation to criminal conduct.” Id.

We discuss defendant Skinner’s and Hernandez’s

actions in turn.

Defendant Skinner

Skinner concedes that he conducted a Terry stop the

moment he questioned Reynaga regarding his immigration

status and conducted an arrest after placing Reynaga in the

police vehicle. At issue, then, is only whether Skinner had

REYNAGA HERNANDEZ V. SKINNER 13

reasonable suspicion or probable cause to conduct the stop

and arrest, respectively.

1. Terry stop

Skinner conducted a Terry stop when he confronted

Reynaga outside the courtroom, asked him questions

regarding his immigration status, and requested

identification. 2 The parties agree that at the time Skinner

conducted the stop, the only relevant information available

to Skinner was Hernandez’s statement that he had heard

sworn testimony that Reynaga was “not a legal citizen.”

Unlike illegal entry into the United States—which is a

crime under 8 U.S.C. § 1325—illegal presence is not a

crime. See Martinez-Medina, 673 F.3d at 1036 (stating that

there is no “federal criminal statute making unlawful

presence in the United States, alone, a federal crime[.]”). A

migrant who is illegally present in the United States may

have committed a civil violation—by overstaying a visa,

changing her student status, or acquiring prohibited

employment—or a criminal violation, by entering the

2

“[N]ot every encounter between a police officer” and an individual

“is an intrusion requiring objective justification.” United States v.

Mendenhall, 446 U.S. 544, 553 (1980). A seizure under the Fourth

Amendment occurs only when a reasonable person would not feel free

to leave or decline the officer’s requests. See Brendlin v. California,

551 U.S. 249, 255 (2007). But Skinner does not dispute that he seized

Reynaga when he confronted him, either here or in the district court. See

Op. Br. 21 (“Skinner did not violate [Reynaga’s] right against

unreasonable searches and seizures when he detained . . . [Reynaga].

Skinner had a reasonable suspicion that [Reynaga] might have

committed a crime as indicated by his presence in the United States.”);

Hernandez, 383 F. Supp. 3d at 1084 (“Deputy Skinner does not dispute

he detained, or Terry stopped, [Reynaga] the moment he began

questioning him.”).

14 REYNAGA HERNANDEZ V. SKINNER

country illegally. See Gonzales v. City of Peoria, 722 F.2d

468, 476–77 (9th Cir. 1983), overruled on other grounds by

Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)

(en banc); Arizona v. United States, 567 U.S. 387, 407

(2012) (“As a general rule, it is not a crime for a removable

alien to remain present in the United States.”). Therefore,

“because mere unauthorized presence is not a criminal

matter, suspicion of unauthorized presence alone does not

give rise to an inference that criminal activity is ‘afoot.’”

Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012)

(quoting Terry, 392 U.S. at 30).

We held in Melendres that “detaining individuals based

solely on reasonable suspicion or knowledge that a person

was unlawfully present in the United States” is not

sufficiently “premised on criminality” to justify a stop under

Terry. 695 F.3d at 1000–01. The single statement conveyed

by Hernandez regarding Reynaga’s unlawful status, then,

was not a sufficiently “particularized and objective basis” for

Skinner to believe that Reynaga was “engaged in, or [] about

to engage in, criminal activity[.]” United States v. Sandoval,

390 F.3d 1077, 1080 (9th Cir. 2004) (emphasis added); see

also Arvizu, 534 U.S. at 273–74. Hernandez did not describe

Reynaga’s manner of entry nor provide additional

information suggestive of criminal conduct.

In Melendres, Latino motorists brought a putative class

action under section 1983 against a county sheriff’s office, a

sheriff, and other individuals, alleging that the defendants

unlawfully engaged in a policy or practice of racially

profiling Latino individuals in connection with vehicle

stops. See 695 F.3d at 994–95. In reviewing the preliminary

injunction entered by the district court, we concluded that

the plaintiff-class was likely to succeed on the merits of its

claims because the class members’ Fourth Amendment

REYNAGA HERNANDEZ V. SKINNER 15

rights had been violated. Id. at 1001–02. Although “illegal

presence may be some indication of illegal entry, unlawful

presence need not result from illegal entry. For example, an

individual may have entered the country lawfully, but

overstayed his or her visa.” Id. at 1001 (internal quotation

marks and citation omitted). Nothing in our previous

caselaw, we explained, “suggests that presence alone is

sufficient to justify a stop by the . . . officers who are not

empowered to enforce civil immigration violations.” Id.

Melendres expanded upon a then-recent case, Martinez-

Medina v. Holder, 673 F.3d 1029 (9th Cir. 2011). In

Martinez-Medina, two immigrants admitted to a deputy

sheriff that they were unlawfully present in the country. Id.

at 1031. The officer approached the pair at a gas station and

asked about their travel plans and whether they had

identification and green cards. Id. One of the two

immigrants spoke to the officer with help from his son, who

acted as a translator. Id. Interpreting the officer’s request

for green cards as a question about their immigration status

in the United States, the two responded that they did not have

green cards. Id. The officer then warned them they could

not leave until “Immigration” arrived. Id. at 1031–32.

At that point, we explained, the officer had seized the

two within the meaning of the Fourth Amendment, only on

suspicion that they were unlawfully present in the country.

Id. at 1034. We held that the officer’s actions did not

egregiously violate the immigrants’ constitutional rights,

because our caselaw regarding whether law enforcement

officers may draw inferences about criminality from an

individual’s immigration status was less than clear at the

time. Id. at 1036–37. But we clarified that “an alien who is

illegally present in the United States . . . [commits] only a

civil violation,” and “admission of illegal presence . . . does

16 REYNAGA HERNANDEZ V. SKINNER

not, without more, provide probable cause of the criminal

violation of illegal entry.” Id. at 1036 (internal quotation

marks omitted) (alterations in original). This “always [was],

and remain[ed], the law of the circuit, binding on law

enforcement officers.” Id.

Hernandez and Skinner concede at various points in their

appellate briefs that Melendres forecloses their argument

that illegal presence alone may establish reasonable

suspicion. They argue only that (1) we “should overrule the

holding in Melendres that illegal presence in the United

States does not create a reasonable suspicion that the person

illegally entered the United States,” Op. Br. 30, and (2) they

had “little experience with the enforcement of immigration

law,” so it was “reasonable for [them] to believe the general

standard for investigatory stops would apply” to Reynaga,

Op. Br. 42.

First, we cannot overrule Melendres. Absent

intervening, controlling authority, a three-judge panel may

not overrule a prior decision of this court. See Miller v.

Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).

Skinner and Hernandez do not point to a Supreme Court case

or federal law calling Melendres into question.

Second, the standard for evaluating whether a Fourth

Amendment violation occurred is objective, not subjective;

Skinner’s and Hernandez’s own experiences with

immigration matters are irrelevant. Ashcroft v. al-Kidd,

563 U.S. 731, 740 (2011) (“Efficient and evenhanded

application of the law demands that we look to whether the

arrest is objectively justified, rather than to the motive of the

arresting officer.” (footnote omitted)).

Because Melendres and Martinez-Medina control and

Skinner fails to demonstrate that he had a particularized and

REYNAGA HERNANDEZ V. SKINNER 17

objective basis for believing “criminal activity [was] afoot,”

Terry, 392 U.S. at 30, we hold the district court did not err

in concluding that Skinner lacked reasonable suspicion to

stop Reynaga.

2. Arrest

Skinner concedes he did not have probable cause to

arrest Reynaga until after he contacted ICE. He instead

argues that he arrested Reynaga only after he had spoken

with the ICE agent. 3 We evaluate, then, whether Reynaga

was arrested within the meaning of the Fourth Amendment

prior to Skinner’s phone call with the ICE agent.

To determine whether a Terry stop has escalated into a

full-blown arrest, we evaluate the severity of the intrusion,

the aggressiveness of the officer’s actions, and the

reasonableness of the officer’s methods under the

circumstances. Washington v. Lambert, 98 F.3d 1181,

1188–89 (9th Cir. 1996). There is no bright-line rule. The

use of “especially intrusive means” of effecting Terry stops

has been held permissible in certain circumstances,

including:

1) where the suspect is uncooperative or takes

action at the scene that raises a reasonable

possibility of danger or flight; 2) where the

police have information that the suspect is

currently armed; 3) where the stop closely

follows a violent crime; and 4) where the

3

It is unclear what Skinner learned about Reynaga’s immigration

status from ICE. The record indicates that Skinner “asked dispatch to

see” if ICE “wanted” Reynaga. An ICE agent then called Skinner and

asked him to transport Reynaga to the Yellowstone County Detention

Facility.

18 REYNAGA HERNANDEZ V. SKINNER

police have information that a crime that may

involve violence is about to occur.

Id. at 1189 (footnotes omitted). Handcuffing as a means of

detaining an individual does not automatically escalate a

stop into an arrest, but it “substantially aggravates the

intrusiveness of an otherwise routine investigatory detention

and is not part of a typical Terry stop.” United States v.

Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982); see also Allen

v. City of Los Angeles, 66 F.3d 1052, 1057 (9th Cir. 1995).

At the time Skinner handcuffed Reynaga, brought him

outside, and placed him into the patrol vehicle, there was no

evidence suggesting that Reynaga was armed,

uncooperative, dangerous, or a flight risk. Reynaga, by all

accounts, fully complied with Skinner’s requests, and

Skinner’s actions substantially aggravated the intrusiveness

of his questioning. A reasonable individual in Reynaga’s

position would not have felt free to leave after being blocked

from entering the courtroom, handcuffed, taken outside, and

placed in Skinner’s patrol vehicle. See United States v. Del

Vizo, 918 F.2d 821, 824–26 (9th Cir. 1990); see also Benitez-

Mendez v. I.N.S., 752 F.2d 1309, 1311 (9th Cir. 1983)

(holding that an individual detained in a Border Patrol

vehicle while officers checked his immigration papers was

seized within the meaning of the Fourth Amendment). We

affirm the district court’s holding that Reynaga was arrested

by the time he was placed in the back of the patrol vehicle,

prior to Skinner’s call to ICE.

As discussed, Skinner concedes that he did not have

probable cause to arrest Reynaga before speaking with the

ICE agent, making the arrest unlawful. Construing the facts

in the light most favorable to Reynaga, we affirm the district

court’s holding that Skinner violated the Fourth Amendment

REYNAGA HERNANDEZ V. SKINNER 19

when he seized Reynaga by Terry-stopping and arresting

him without reasonable suspicion or probable cause,

respectively.

Defendant Hernandez

The district court concluded that Hernandez seized

Reynaga because he was an “integral participant” in

Skinner’s unlawful actions. As a predicate to section 1983

liability, each public official must integrally participate in

the unlawful seizures of Reynaga. See Boyd v. Benton

County, 374 F.3d 773, 780 (9th Cir. 2004).

We have yet to define the minimum level of involvement

for liability under the integral-participant doctrine. The

official’s individual actions need not “themselves rise to the

level of a constitutional violation,” id., but the official must

be more than a “mere bystander[],” Bravo v. City of Santa

Maria, 665 F.3d 1076, 1090 (9th Cir. 2011). In Blankenhorn

v. City of Orange, 485 F.3d 463 (9th Cir. 2007), for example,

we held that an officer whose actions were “instrumental” in

effectuating a constitutional violation was an integral

participant. Id. at 481 n.12. The officer handcuffed the

suspect, which then allowed another officer to place hobble

restraints on him. Id. at 480. We held that the use of hobble

restraints was an excessive use of force and not justified as a

matter of law, and that the handcuffing officer integrally

participated in the unlawful use of those restraints. Id. at 469

& n.3, 478–80; see also Keates v. Koile, 883 F.3d 1228, 1242

(9th Cir. 2018) (holding that a complaint adequately alleged

defendants were integral participants in a violation of the

right to familial association because defendants “were aware

of [the child’s] situation . . . and participated in a meaningful

way in a collective decision” to remove the child from her

mother’s custody).

20 REYNAGA HERNANDEZ V. SKINNER

Helpful to this analysis are the standards of causation

under tort law. Constitutional violations under section 1983

are a species of tort liability. See Carey v. Piphus, 435 U.S.

247, 253–55 (1978); City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687, 727 (1999) (Scalia, J.,

concurring in part). Tort law measures causation by

reference to two standards: proximate and but-for cause.

“Proximate cause is often explicated in terms of

foreseeability or the scope of the risk created by the predicate

conduct.” Paroline v. United States, 572 U.S. 434, 445

(2014). It precludes liability only “where the casual link

between conduct and result is so attenuated that the

consequence is more aptly described as mere fortuity.” Id.

But-for causation, instead, exists where the alleged injury or

result would not have occurred “but for” that conduct. White

v. Roper, 901 F.2d 1501, 1505–06 (9th Cir. 1990).

We have not clarified whether we import both proximate

cause and but-for cause into our integral-participant

doctrine. Blankenhorn suggests that we require only but-for

cause, as there was no indication that the officer who was an

integral participant knew that the other officer would use

hobble restraints. See 485 F.3d at 481 n.12. The officer who

used the hobble restraints stated in a declaration that the

handcuffing officer’s help was “instrumental in the officers’

gaining control” of the suspect, which “culminated in [the]

application of hobble restraints.” Id. In other words, but for

the use of handcuffs, the officer would not have been able to

apply the hobble restraints. We did not address the

foreseeability of the use of restraints or the scope of risk

created by using handcuffs.

Under either standard of causation, however, Hernandez

was an integral participant in the violation of Reynaga’s

constitutional rights. The but-for standard is easily met:

REYNAGA HERNANDEZ V. SKINNER 21

Skinner would not have been present at the courthouse or

questioned Reynaga but-for Hernandez’s phone call. And

Reynaga’s unlawful stop and arrest were reasonably

foreseeable consequences—or, at the very least, within the

scope of risk—of Hernandez’s orders. Indeed, once

Hernandez learned from the witness’s testimony that

Reynaga was unlawfully present in the United States, he

ordered his staff to contact the sheriff’s office because he

“want[ed] [the witnesses] picked up.” Hernandez did not, as

he now argues, “request[] an investigation.” Op. Br. 23.

After ordering that he wanted Reynaga “picked up,” he then

directed Reynaga’s wife to remain in the courtroom so that

she could not warn Reynaga of Skinner’s impending arrival.

Skinner told Hernandez he would “take care of it,” and

Hernandez offered no clarification that he preferred Skinner

conduct an investigation or mere inquiry. Reynaga’s

detention was a reasonably foreseeable consequence—

indeed, perhaps the only reasonable interpretation—of

Hernandez’s order that Reynaga be “picked up.”

Hernandez argues that “[t]he integral participant

doctrine is not based on logic,” and, if we conclude

Hernandez was an integral participant, we should “overturn

the doctrine[.]” Reply Br. 13. As a three-judge panel, we

cannot simply overrule circuit precedent. Miller, 335 F.3d

at 899–900. Hernandez does not point to any federal law or

Supreme Court case that effectively overrules the doctrine.

We hold that the district court did not err in concluding that

Hernandez was an integral participant in Reynaga’s

unlawful stop and detention.

* * *

We affirm the district court’s conclusion that, viewing

the facts in the light most favorable to Reynaga, Skinner

violated the Fourth Amendment by detaining and arresting

22 REYNAGA HERNANDEZ V. SKINNER

Reynaga without reasonable suspicion or probable cause,

respectively, and that Hernandez was an integral participant

in that unlawful conduct.

B.

The second prong in the qualified-immunity analysis is

whether the constitutional right in question was clearly

established at the time of the alleged violation. Saucier v.

Katz, 533 U.S. 194, 201 (1994). The “clearly established

law” that has been allegedly violated “should not be defined

at a high level of generality”; it must be “particularized” to

the facts of the case. White v. Pauly, 137 S. Ct. 548, 552

(2017) (internal quotation marks omitted). “[T]he contours

of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Graves v. City of Coeur d’Alene, 339 F.3d 828, 846

(9th Cir. 2003), abrogation on other grounds recognized in

OTR Wheel Eng’g, Inc. v. West Worldwide Servs., Inc.,

897 F.3d 1008, 1016 (9th Cir. 2018).

1. Terry stop

Existing precedent forecloses Skinner’s and

Hernandez’s arguments that Reynaga’s right to be free from

a Terry stop absent reasonable suspicion was not clearly

established in these circumstances. Melendres clearly

establishes the law that governs the Fourth Amendment right

implicated by Reynaga’s unlawful Terry stop. Skinner

stopped Reynaga solely on the basis of Hernandez’s

statement that a witness had testified that Reynaga was “not

a legal citizen.” Melendres—which was decided in 2012,

almost five years before Skinner stopped Reynaga—held

that “detaining individuals based solely on reasonable

suspicion or knowledge that a person was unlawfully present

in the United States” is not sufficiently “premised on

REYNAGA HERNANDEZ V. SKINNER 23

criminality” to be justified under Terry. 695 F.3d at 1000–

1001.

Skinner detained Reynaga based solely on knowledge

that he was unlawfully present in the United States.

Reynaga’s right to be free from detention absent reasonable

suspicion in this context was clearly established at the time

of the stop.

2. Arrest

Neither are Skinner and Hernandez entitled to qualified

immunity for Skinner’s unlawful arrest of Reynaga. For the

reasons discussed, Skinner arrested Reynaga when he

handcuffed Reynaga and detained him in the patrol car. 4

The Supreme Court and our own court long ago

established an immigrant’s right to be free from arrest absent

probable cause that he has entered the country unlawfully.

Officers may, during a justified Terry stop, question

individuals “about their citizenship and immigration status,

and . . . may ask them to explain suspicious circumstances,

but any further detention or search must be based on consent

or probable cause.” United States v. Brignoni-Ponce,

422 U.S. 873, 881–82 (1975).

In Gonzales v. City of Peoria, published in 1983, we held

that an individual’s “lack of documentation or other

4

Skinner and Hernandez also briefly argue that the district court

misapplied the collective-knowledge doctrine. They assert that because

Skinner was “working in concert with ICE, the information ICE had as

to probable cause for the arrest of [Reynaga] could . . . be imputed to

Skinner.” Op. Br. 44. Because we conclude Reynaga was arrested when

he was handcuffed and placed in the patrol car—prior to Skinner’s phone

call to ICE—we do not address this doctrine.

24 REYNAGA HERNANDEZ V. SKINNER

admission of illegal presence” does not, “without more,

provide probable cause of the criminal violation of illegal

entry.” 722 F.2d at 476–77. Arresting officials must “be

able to distinguish between criminal and civil violations and

the evidence pertinent to each.” Id. at 477. We re-

emphasized this in Martinez-Medina, explaining that an

immigrant’s “admission of illegal presence . . . does not,

without more, provide probable cause of the criminal

violation of illegal entry,” which “remain[ed], the law of the

circuit, binding on law enforcement officers.” 673 F.3d

at 1036 (quoting Gonzales, 722 F.2d at 476–77).

We have also stated, in varying contexts, that the other

factors upon which Skinner relied to arrest Reynaga are

minimally probative of the crime of illegal entry. In Manzo-

Jurado, we held that a group of “individuals’ appearance as

a Hispanic work crew, inability to speak English, proximity

to the border, and unsuspicious behavior” 5 did not even

amount to reasonable suspicion of illegal entry. 457 F.3d

at 940; see also Benitez-Mendez, 752 F.2d at 1311 (holding

that an immigrant was unlawfully seized by a Border Patrol

officer where the officer knew only that he “was a field

worker whose co-workers fled upon sight of a marked

Border Patrol detail,” was an “alien,” and “claimed to

possess documents showing his legal status”).

In Gonzales, we cautioned that “an arresting officer

cannot assume that [a noncitizen] who admits he lacks

proper documentation” committed a crime; “the lack of

documentation or other admission of illegal presence may be

some indication of illegal entry,” but “it does not, without

more, provide probable cause of the criminal violation[.]”

722 F.2d at 476–77; see also Tatum v. City & County of San

5

457 F.3d at 932.

REYNAGA HERNANDEZ V. SKINNER 25

Francisco, 441 F.3d 1090, 1094–95 (9th Cir. 2006).

Likewise, an individual’s language skills, without more, do

not constitute probable cause. See Brignoni-Ponce, 422 U.S.

at 886–87 (recognizing that a widespread characteristic

“standing alone . . . does not justify stopping all Mexican-

Americans to ask if they are aliens”); Manzo-Jurado,

457 F.3d at 936–37 (concluding that a lack of language skills

standing alone does not even rise to the level of reasonable

suspicion); see also United States v. Rodriguez, 976 F.2d

592, 595–96 (9th Cir. 1992) (explaining that in evaluating

whether reasonable suspicion has been met, courts “must not

accept what has come to appear to be a prefabricated or

recycled profile of suspicious behavior very likely to sweep

many ordinary citizens into a generality of suspicious

appearance merely on hunch”). Together, these cases

sufficiently constitute the “body of relevant case law . . .

necessary to clearly establish the answer with respect to

probable cause.” District of Columbia v. Wesby, 138 S. Ct.

577, 590 (2018) (internal quotation marks omitted).

Reynaga’s right to be free from arrest absent probable

cause that he entered the country unlawfully has been

established since at least 2012, by which time we had

published both Melendres and Martinez-Medina, and

arguably as early as Gonzales, in 1983.

IV.

We affirm the district court’s denial of qualified

immunity for both Skinner and Hernandez. Skinner stopped

and arrested Reynaga without reasonable suspicion or

probable cause, respectively, and Hernandez integrally

participated in his actions. Reynaga’s right to be free from

unlawful stops in this circumstance has been established

since at least 2012, by which time both Melendres and

Martinez-Medina were law of the circuit.

26 REYNAGA HERNANDEZ V. SKINNER

AFFIRMED.