Jose Chavez v. James Ziglar

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE CHAVEZ, husband and MARIA 

ELENA CHAVEZ, wife,

Plaintiffs-Appellees,

v.

No. 10-17659

UNITED STATES OF AMERICA,

D.C. No.

Defendant,

 4:01-cv-00245-

and FRZ-JJM

JAMES W. ZIGLAR; DAVID AGUILAR; OPINION

RALPH HUNT; ALVARO OBREGON;

FELIX CHAVEZ; MICHAEL CAMPBELL,

Border Patrol Agents,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted

January 10, 2012—San Francisco, California

Filed June 20, 2012

7279

7280 CHAVEZ v. UNITED STATES

Before: J. Clifford Wallace and Milan D. Smith, Jr.,

Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Jed S. Rakoff;

Concurrence by Judge Wallace

*The Honorable Jed S. Rakoff, Senior District Judge for the U.S. Dis-

trict Court for Southern New York, sitting by designation.

7282 CHAVEZ v. UNITED STATES

COUNSEL

Barbara Herwig and Teal Miller (argued), Civil Division,

Department of Justice, for the defendants-appellants.

Armand Salese (argued) and Ned Garn, Tucson, Arizona, for

the plaintiffs-appellees.

CHAVEZ v. UNITED STATES 7283

OPINION

RAKOFF, Senior District Judge:

Between 1995 and 2001, plaintiffs Jose and Maria Elena

Chavez operated a shuttle service between Sesabe, Arizona

and Tucson, Arizona. Plaintiffs allege that Border Patrol

agents stopped their shuttle repeatedly and in violation of

their Fourth Amendment rights. Based on these allegations,

the plaintiffs bring claims not only against the agents who

stopped them, but also against supervisors who they claim

reviewed and directed the stops. We hold that plaintiffs’ con-

clusory allegations fail to state a claim against all of the

supervisors but one, a direct participant in the stops.

FACTUAL ALLEGATIONS

In December of 2001, Jose and Maria Elena Chavez filed

a “Bivens” action alleging, among other things, that Border

Patrol agents had violated their Fourth Amendment rights.

According to the complaint, the plaintiffs operated a shuttle

service that, beginning in the Fall of 1995, made two or three

round trips each day between Sesabe, Arizona and Tucson,

Arizona. The shuttle never crossed the border with Mexico.

Both plaintiffs and the majority of their passengers are His-

panic. Plaintiffs have no training in identifying illegal aliens,

and the Border Patrol, in response to an inquiry plaintiffs filed

with their Congressman, allegedly informed the plaintiffs

(through their Congressman) that the plaintiffs had no respon-

sibility for assessing their passengers’ immigration status.

Plaintiffs allege that, beginning in 1995, roving Border

Patrol agents stopped their shuttle on “almost a daily basis.”

They allege that, because they traveled at speeds of up to

sixty-five miles per hour, Border Patrol agents could not pos-

sibly have discerned “particular features of individual vehi-

cles or their occupants reasonably probative of drug

trafficking, alien smuggling or related wrongdoing, except,

7284 CHAVEZ v. UNITED STATES

perhaps, in a small percentage of exceptional cases,” and so

the agents had no basis for making the stops. Instead, plain-

tiffs allege, the stops were based principally on “the Latin,

Hispanic or Mexican appearance of drivers and/or other occu-

pants of vehicles.” Plaintiffs allege that agents occasionally

referred to passengers as “wetbacks” and used profanity. An

agent also allegedly told plaintiffs that plaintiffs should be

able to identify illegal aliens by their uncleanliness and offen-

sive odor. The average stop, according to the complaint,

lasted five to thirty minutes.

Plaintiffs also allege that the agents have threatened plain-

tiffs, demanded that plaintiffs refund their passengers’ fares,

required plaintiffs to reverse course, confiscated plaintiffs’

van, and removed personal property from it. According to

plaintiffs, agents became angry if they did not find illegal

aliens aboard the shuttle. Agents allegedly did not ask for

consent before searching the shuttle, and plaintiffs never gave

such consent.

In addition to suing various border patrol agents, the plain-

tiffs also bring claims against supervisors within the Border

Patrol, specifically, James Ziglar, the “Acting Commissioner”

of the Immigration and Naturalization Service (“INS”), David

Aguilar, the Chief Border Patrol Agent for the Tucson sector,

and Ralph Hunt, Alvaro Obregon, Felix Chavez, and Michael

Campbell, who all hold supervisory positions in the Border

Patrol (collectively, the “supervisory defendants”). Plaintiffs

allege that Ziglar, by virtue of his position as Acting Commis-

sioner, bore responsibility for overseeing and supervising

Border Patrol functions at the sector level. In the course of

such supervision, Ziglar allegedly reviewed and approved

each Chief Border Patrol Agent’s enforcement program

before allowing its implementation. As for Aguilar, as Chief

Border Patrol Agent for the Tucson sector, he had direct

responsibility for the ongoing activities of Border Patrol

agents in that sector.

CHAVEZ v. UNITED STATES 7285

Plaintiffs allege that, “at various times,” they complained

about the frequent stops to Hunt, Obregon, Felix Chavez, and

Campbell. Because the stops continued despite their com-

plaints and the supervisory defendants’ responsibilities, the

plaintiffs allege that the supervisory defendants “personally

reviewed and, thus, knowingly ordered, directed, sanctioned

or permitted” the allegedly unconstitutional stops.

Finally, plaintiffs allege that Hunt and Obregon personally

participated in stops. First, after a Border Patrol agent arrested

Maria Elena Chavez, Obregon allegedly interrogated her for

four to five hours. Next, plaintiffs claim that Hunt personally

stopped them on at least two occasions. During one such stop

in the Winter of 2000-2001, Hunt allegedly required Jose

Chavez to refund the passengers’ fares. During another stop

in August of 2000, Hunt allegedly took the keys to plaintiffs’

van after discovering that passengers did not have appropriate

documentation. In connection with this same stop, a different

Border Patrol agent allegedly transported Jose Chavez to the

“Three Points area” and left him there.

PROCEDURAL BACKGROUND

In August of 2002, the district court dismissed the claims

against Ziglar, Aguilar, Hunt, Obregon, Felix Chavez, and

Campbell, concluding that plaintiffs had failed “to specifically

allege that any Defendant Supervisor was personally involved

or linked to any of Plaintiffs’ alleged constitutional depriva-

tions.” This Court reversed. Chavez v. United States, 226 F.

App’x 732, 736 (9th Cir. 2007). We concluded that:

The complaint adequately alleges the personal

involvement of the supervisors in the unconstitu-

tional patrols. Specifically, it alleges that the defen-

dants “personally reviewed and, thus, knowingly

ordered, directed, sanctioned or permitted the roving

patrol[s].” The complaint also alleges that the uncon-

stitutional patrols were exacerbated by a lack of

7286 CHAVEZ v. UNITED STATES

reporting requirements, and that the Chavezes com-

plained to Hunt, Obregon, Chavez, and Campbell

about the allegedly unlawful stops. Furthermore, the

complaint alleges that Aguilar knew of the roving

patrols and deliberately sanctioned them.

An unconstitutional policy and practice can be

inferred from the complaint’s description of directed

and repeated roving patrols, the allegation that the

supervisors sanctioned them, and the allegation that

the agents had supervisory authority.

Id. (quoting cmplt. ¶ 26).1

After the Ninth Circuit reinstated plaintiffs’ Bivens claims

against the supervisory defendants, the Supreme Court

decided Ashcroft v. Iqbal, 556 U.S. 662 (2009). In light of

Iqbal, the supervisory defendants filed a motion for judgment

on the pleadings under Federal Rule of Civil Procedure 12(c).

The district court denied the motion, finding that the supervi-

sory defendants failed to provide a plausible non-

discriminatory explanation for the alleged stops. Moreover,

the district court held that plaintiffs did not need to allege that

the supervisory defendants directly participated in constitu-

tional violations. Instead, citing Larez v. City of Los Angeles,

946 F.2d 630, 646 (9th Cir. 1991), the district court held that

the plaintiffs had plausibly alleged that the supervisory defen-

dants had either knowingly refused to terminate a series of

acts they reasonably should have known would cause consti-

1

Although the plaintiffs claim that they also have a valid Fifth Amend-

ment claim against the defendants, the district court in 2002 dismissed

plaintiffs’ “First, Fourth, Fifth, Eighth, and Fourteenth Amendment Bivens

claims,” and plaintiffs in their first appeal challenged only the dismissal

of their Fourth Amendment claims. Chavez v. United States, 226 F. App’x

732, 734 (9th Cir. 2007). Because this Court’s earlier decision considered

and reinstated only plaintiffs’ Fourth Amendment claim, id. at 735-36,

plaintiffs have no remaining Fifth Amendment claim, and the Court

declines to consider any arguments based on the Fifth Amendment.

CHAVEZ v. UNITED STATES 7287

tutional violations, acquiesced in constitutional deprivations

by subordinates, or displayed reckless or callous indifference

to others’ rights.

The supervisory defendants now appeal from that decision.

We have jurisdiction to hear this appeal because “a district

court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final deci-

sion’ within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.” Mitchell v. Forsyth, 472

U.S. 511, 530 (1985). While the district court here did not

address the issue of qualified immunity, the supervisory

defendants raised qualified immunity as a defense in their

answer to the complaint, and both their motion under Rule

12(c) and their objections to the Magistrate Judge’s Report

and Recommendation made frequent reference to qualified

immunity. Thus, by failing to address the question of quali-

fied immunity, the district court denied the supervisory defen-

dants’ defense sub silentio.

Where an appellate court has jurisdiction to review the

denial of a qualified immunity defense, it also has jurisdiction

to review predominantly legal issues, such as the sufficiency

of a complaint, that are “inextricably intertwined with” and

“directly implicated by” the issue of qualified immunity. Ash-

croft v. Iqbal, 556 U.S. 662, 673 (2009) (quoting Hartman v.

Moore, 547 U.S. 250, 257 n.5 (2006); Swint v. Chambers

Cnty. Comm’n, 514 U.S. 35, 51 (1995)). Accordingly, we

have jurisdiction to review both whether the supervisory

defendants have qualified immunity — which turns on legal

issues such as whether they allegedly violated “clearly estab-

lished” rights, Behrens v. Pelletier, 516 U.S. 299, 313 (1996)

— and whether the complaint adequately alleges any claim

against the supervisory defendants. We review both issues de

novo. Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th

Cir. 2011); Act Up!/Portland v. Bagley, 988 F.2d 868, 871

(9th Cir. 1993).

7288 CHAVEZ v. UNITED STATES

DISCUSSION

Under Federal Rule of Civil Procedure 12(c), “[a]fter the

pleadings are closed — but early enough not to delay trial —

a party may move for judgment on the pleadings.” “Judgment

on the pleadings is properly granted when[, accepting all fac-

tual allegations in the complaint as true,] there is no issue of

material fact in dispute, and the moving party is entitled to

judgment as a matter of law.” Fleming v. Pickard, 581 F.3d

922, 925 (9th Cir. 2009). Analysis under Rule 12(c) is “sub-

stantially identical” to analysis under Rule 12(b)(6) because,

under both rules, “a court must determine whether the facts

alleged in the complaint, taken as true, entitle the plaintiff to

a legal remedy.” Brooks v. Dunlop Mfg. Inc., No. C 10-04341

CRB, 2011 WL 6140912, at *3 (N.D. Cal. Dec. 9, 2011).

On a motion to dismiss under Rule 12(b)(6), a court must

assess whether the complaint “contain[s] sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plau-

sible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere conclu-

sory statements in a complaint and “formulaic recitation[s] of

the elements of a cause of action” are not sufficient. Twombly,

550 U.S. at 555. Thus, a court discounts conclusory state-

ments, which are not entitled to the presumption of truth,

before determining whether a claim is plausible. Iqbal, 556

U.S. at 678. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the rea-

sonable inference that the defendant is liable for the miscon-

duct alleged.” Id. “Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task

that requires the reviewing court to draw on its judicial expe-

rience and common sense.” Id. at 679.

[1] Applying this standard to a claim alleging invidious

discrimination in violation of the Fifth Amendment, the

Supreme Court in Iqbal noted that officials violate the Fifth

Amendment only when they act with a “discriminatory pur-

CHAVEZ v. UNITED STATES 7289

pose.” Id. at 676. Moreover, the Supreme Court acknowl-

edged that Bivens claims cannot proceed on a theory of

respondeat superior, but must instead plead that a supervisor,

by her “own individual actions,” violated the Constitution. Id.

Putting these requirements together, the Supreme Court noted

that, to state a discrimination claim against a supervising offi-

cial under the Fifth Amendment, a complaint must allege that

the supervisor acted with “purpose rather than knowledge.”

Id. at 677. Because the complaint at issue alleged only that the

supervisors had approved a policy of detaining thousands of

Arab, Muslim men, it failed to plausibly suggest that they had

acted with a discriminatory purpose. Id. at 683-83. Instead,

the Court held that an “obvious alternative explanation”

existed for approving the policy, namely a “nondiscriminatory

intent to detain aliens who were illegally present in the United

States and who had potential connections to those who com-

mitted terrorist acts.” Id. at 682 (quoting Twombly, 550 U.S.

at 567). Thus, the Supreme Court dismissed the complaint

under Rule 12(b)(6). Id. at 687.

[2] Relying on Iqbal, the supervisory defendants invite the

Court to hold that the Fourth Amendment, like the Fifth

Amendment, requires plaintiffs to allege that supervisors

acted with a “discriminatory purpose.” This argument, how-

ever, misreads Iqbal. In Iqbal, the Supreme Court did not

require allegations of “discriminatory purpose” in order to

render supervisors liable for any constitutional violation by

their subordinates. Rather, the Supreme Court noted that

plaintiffs cannot base a claim against supervisors on a theory

of respondeat superior, and must instead show that the super-

visors, “through [their] own individual actions, ha[ve] vio-

lated the Constitution.” Id. at 676. Because a plaintiff

claiming invidious discrimination under the Fifth Amendment

must allege facts showing that officers acted with a “discrimi-

natory purpose,” allowing that Fifth Amendment claim to pro-

ceed against a supervisor in the absence of a particularized

showing of such a purpose would, in effect, render the super-

visor vicariously liable for her subordinates’ intent. Id. at 677.

7290 CHAVEZ v. UNITED STATES

The requirement that a plaintiff allege a “discriminatory pur-

pose,” then, derived from the Fifth Amendment rather than

from the fact that the plaintiff pled claims against supervisors.

We see nothing in Iqbal indicating that the Supreme Court

intended to overturn longstanding case law by adding a “dis-

criminatory purpose” requirement to a Fourth Amendment

claim against supervisors. See Starr v. Baca, 652 F.3d 1202,

1207 (9th Cir. 2011) (reaching same conclusion for an Eighth

Amendment claim).

[3] The Fourth Amendment, unlike the Fifth Amendment,

does not require a plaintiff to allege that an officer acted with

any “subjective motivation.” Brigham City, Utah v. Stuart,

547 U.S. 398, 404 (2006). An officer conducting a roving

patrol near the border violates the Fourth Amendment if she

stops a vehicle in the absence of an objectively “reasonable

suspicion” that the “particular vehicle may contain aliens who

are illegally in the country” or is involved in some other crim-

inal conduct. United States v. Brignoni-Ponce, 422 U.S. 873,

881 (1975). Even if an officer makes a stop that violates the

Fourth Amendment, qualified immunity protects the officer

from liability unless “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled in part

on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009).

[4] Because Iqbal requires courts to apply an equivalent

standard to supervisors and subordinates, we hold that, taking

qualified immunity into account, a supervisor faces liability

under the Fourth Amendment only where “it would be clear

to a reasonable [supervisor] that his conduct was unlawful in

the situation he confronted.” A lower standard would impose

vicarious liability on supervisors based on their subordinates’

clearly unlawful conduct. Because the plaintiffs’ complaint,

as described below, does not come close to meeting this stan-

dard except with respect to defendant Hunt, who faces liabil-

ity for his direct participation in the stops, we leave to future

CHAVEZ v. UNITED STATES 7291

cases the determination of what conduct by supervisors may

qualify as clearly unlawful.

[5] Judged under the standard described above, plaintiffs’

complaint fails to state a Fourth Amendment claim against

any supervisory defendant except Hunt. Turning first to the

supervisory defendants other than Hunt, even assuming

arguendo that the plaintiffs have sufficiently alleged that Bor-

der Patrol agents conducted stops without reasonable suspi-

cion, plaintiffs have not alleged facts that would allow a court

to draw a reasonable inference that a reasonable supervisor in

these defendants’ situations would have found their conduct

to be clearly unlawful. The Court discounts, as it must, the

plaintiffs’ wholly conclusory allegation that the supervisory

defendants “personally reviewed and, thus, knowingly

ordered, directed, sanctioned or permitted” the allegedly

unconstitutional stops. Having done so, the remaining allega-

tions do not plausibly suggest that these supervisors clearly

should have regarded their conduct as unlawful.

First, the plaintiffs allege as to defendant James W. Ziglar

only that Commissioner Ziglar, by virtue of his position, “re-

views and must approve . . . operation plans and enforcement

programs developed by the Chief Border Patrol Agents imme-

diately in command of Sector forces.” Nonetheless, plaintiffs

do not suggest that the relevant plan and program for the Tuc-

son sector indicated anything that would have informed Com-

missioner Ziglar that allegedly unconstitutional stops

occurred, much less that his own conduct was, at least in the

eyes of a reasonable supervisor, clearly unlawful. In the

absence of any explanation of how Ziglar’s review and

approval of the Tucson sector’s plans and programs — some-

thing he apparently did for each sector in the country —

would have alerted him to the allegedly unconstitutional

searches, the Court holds that there is no plausible suggestion

that a reasonable supervisor would have found it clear that

Ziglar’s “conduct was unlawful in the situation he confront-

ed.”

7292 CHAVEZ v. UNITED STATES

Second, the plaintiffs allege as to defendant David Aguilar

only that Aguilar “had line authority over and direct responsi-

bility for the ongoing activities and operations of Border

Patrol agents assigned to field duty in the Tucson sector.”

Once again, however, plaintiffs fail to explain why, by virtue

of these responsibilities, Aguilar would have had reason to

know that Border Patrol agents, who presumably conduct

numerous stops, had frequently stopped plaintiffs, much less

that they did so without reasonable suspicion. Seemingly

aware that they have no factual basis for imputing any such

knowledge to Aguilar and the other supervisors, plaintiffs

allege that the Border Patrol’s failure to keep records of its

stops during roving patrols constitutes a “deliberate pattern[ ]

and practice[ ], designed to conceal or obfuscate” the alleged

constitutional violations. Nonetheless, plaintiffs offer no fac-

tual support for their conspiratorial theories, and the Border

Patrol might simply have decided not to record stops during

roving patrols because maintaining such records would have

imposed a substantial administrative burden that interfered

with accomplishment of its other law enforcement objectives.

Cf. Iqbal, 556 U.S. at 682 (“As between that ‘obvious alterna-

tive explanation’ for the arrests, and the purposeful, invidious

discrimination respondent asks us to infer, discrimination is

not a plausible conclusion.” (citation omitted)). Accordingly,

plaintiffs do not plausibly suggest that a reasonable supervisor

would have found it clear that Aguilar’s “conduct was unlaw-

ful in the situation he confronted.”

Third, with respect to defendants Obregon, Felix Chavez,

and Campbell, the plaintiffs allege only that, “at various

times,” they complained to these defendants about “the fre-

quent stops.” This allegation does not specify whether plain-

tiffs complained to any defendant more than once or whether

they informed any defendant of their belief that the stops, in

addition to being “frequent,” were not based on reasonable

suspicion. A reasonable supervisor would not find it clear

that, by failing to investigate vague complaints of “frequent

stops,” which plaintiffs made at “various,” unspecified times,

CHAVEZ v. UNITED STATES 7293

Obregon, Felix Chavez, and Campbell acted unlawfully. Nei-

ther does Obregon’s alleged interrogation of plaintiff Maria

Chavez plausibly suggest that a reasonable supervisor would

have found his actions clearly unlawful. Instead, the com-

plaint makes clear that Obregon interrogated Ms. Chavez only

after a subordinate agent had stopped the shuttle, found that

no passenger had required documentation, arrested Ms. Cha-

vez, and brought her to a Border Patrol station. Obregon can-

not have been expected to infer from such incriminating

circumstances that the agent making the initial stop lacked

reasonable suspicion to do so, and the plaintiffs do not allege

that he drew any such inference. Thus, the complaint fails to

plausibly allege that a reasonable supervisor would have

found it clear that Obregon, Felix Chavez, and Campbell

acted unlawfully in the situations they confronted.

[6] In contrast to the other supervisory defendants, Hunt

faces liability not only as a supervisor, but also for his direct

participation in the stops. As noted above, the Fourth Amend-

ment prohibits an officer on roving patrol near the border

from stopping a vehicle in the absence of an objectively “rea-

sonable suspicion” that the “particular vehicle may contain

aliens who are illegally in the country” or is involved in some

other criminal conduct. Brignoni-Ponce, 422 U.S. at 881.

Standing alone, “apparent Mexican ancestry,” “even in the

border area,” justifies “neither a reasonable belief that [a vehi-

cle’s occupants are] aliens, nor a reasonable belief that the car

conceal[s] other aliens who [are] illegally in the country.” Id.

at 885-86. Moreover, because “a search unlawful at its incep-

tion may [not] be validated by what it turns up,” Wong Sun

v. United States, 371 U.S. 471, 484 (1963), discovery of

undocumented individuals in a vehicle does not excuse an ini-

tial lack of reasonable suspicion. Nonetheless, even if an offi-

cer violates the Fourth Amendment, qualified immunity still

protects him from liability unless “it would be clear to a rea-

sonable officer that his conduct was unlawful in the situation

he confronted.” Saucier, 533 U.S. at 202.

7294 CHAVEZ v. UNITED STATES

[7] Here, plaintiffs plausibly allege conduct by Hunt that

would be a clear Fourth Amendment violation to a reasonable

officer. Plaintiffs allege that, because they traveled at highway

speeds, Border Patrol agents could not make the particular-

ized observations necessary to form a reasonable suspicion

that plaintiffs’ shuttle contained aliens. They further allege

that Border Patrol agents instead focused principally on “the

Latin, Hispanic or Mexican appearance of drivers and/or other

occupants of vehicles,” a characteristic that, under Brignoni-

Ponce, clearly does not give rise to reasonable suspicion.

Plaintiffs allege that Hunt twice personally stopped the Cha-

vez shuttle. On the first such occasion, Hunt allegedly

demanded that Jose Chavez return his passengers’ fares.

When Hunt allegedly next stopped the shuttle, he took the

keys to plaintiffs’ van, and another officer involved in the

stop transported Jose Chavez to the “Three Points area and

left [him] there.”

[8] The facts alleged in the complaint do not indicate that,

when Hunt made these two stops, any observable characteris-

tics other than race could have provided a basis for reasonable

suspicion. See Brignoni-Ponce, 422 U.S. at 886 (“At best the

officers had only a fleeting glimpse of the persons in the mov-

ing car . . . .”). Indeed, although the supervisory defendants

argue that Hunt’s knowledge that plaintiffs’ shuttle had car-

ried undocumented passengers on previous occasions would

have supported reasonable suspicion, but see United States v.

Sandoval, 29 F.3d 537, 542 (10th Cir. 1994) (“[K]nowledge

of a person’s prior criminal involvement (to say nothing of a

mere arrest) is alone insufficient to give rise to . . . reasonable

suspicion.”), the complaint indicates that, on one of the two

occasions when Hunt stopped plaintiffs, plaintiffs drove a

rental van because their usual shuttle was under repair. Based

on the facts set forth in the complaint, we hold that plaintiffs

have plausibly alleged that Hunt stopped them based solely on

their and their passengers’ “apparent Mexican ancestry,” a

characteristic that a reasonable officer clearly would have

known did not create reasonable suspicion. Accordingly, the

CHAVEZ v. UNITED STATES 7295

complaint adequately states a claim against Hunt for Fourth

Amendment violations, and, at least on the facts alleged, qual-

ified immunity does not shield Hunt from liability.

CONCLUSION

In sum, we hold that, to state a claim against supervising

officers for causing their subordinates’ purported violations of

the Fourth Amendment, a complaint must allege facts that

plausibly suggest that a reasonable supervisor would find it

“clear” that the defendant’s conduct was “unlawful in the situ-

ation he confronted.” Applying that standard to this case, we

hold that plaintiffs’ complaint fails to state a claim against any

supervisory defendant other than Hunt, who directly partici-

pated in the alleged underlying violations. Accordingly, we

affirm the district court’s ruling with respect to Hunt, but

reverse it and direct the entry of final judgment with respect

to Ziglar, Aguilar, Obregon, Felix Chavez, and Campbell.

AFFIRMED in part, and REVERSED in part.

WALLACE, Senior Circuit Judge, concurring:

I fully concur in the opinion and judgment, but I would

have preferred to resolve this appeal without addressing the

effect of Ashcroft v. Iqbal, 556 U.S. 662 (2009), on supervi-

sory liability in the Fourth Amendment context. This is

because even under the pre-Iqbal standard described in Larez

v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991),

plaintiffs’ claims meet the same fate described in the panel’s

opinion for substantially the same reasons. Once we strip

away plaintiffs’ conclusory allegations as mandated by the

section of Iqbal addressing general pleading standards, 556

U.S. at 678-79, there are no factual allegations alleging that

any of the supervisory defendants except Hunt knew or rea-

sonably should have known that their conduct would cause

7296 CHAVEZ v. UNITED STATES

others to inflict a constitutional injury. See Larez, 946 F.2d at

646.

Our court recently reasoned that it did not need to consider

the debate regarding the extent to which the Ninth Circuit’s

pre-Iqbal supervisory liability standard remains good law

because the complaint’s allegations fell even under the old

standard. Moss v. United States Secret Serv., 675 F.3d 1213,

1231 n.6 (9th Cir. 2012). Similarly, at least eight opinions

from other circuit courts have explicitly recognized that Iqbal

might restrict supervisory liability, but have refused to rule on

the extent of the restriction when the question could be

avoided. See Soto-Torres v. Fraticelli, 654 F.3d 153, 158 n.7

(1st Cir. 2011); Argueta v. United States Immigration & Cus-

toms Enforcement, 643 F.3d 60, 70 (3d Cir. 2011); Santiago

v. Warminster Twp., 629 F.3d 121, 130 n.8 (3d Cir. 2010);

Mink v. Knox, 613 F.3d 995, 1002 n.5 (10th Cir. 2010); Lewis

v. Tripp, 604 F.3d 1221, 1227 n.3 (10th Cir. 2010); Parrish

v. Ball, 594 F.3d 993, 1001 n.1 (8th Cir. 2010); Bayer v. Mon-

roe Cnty. Children & Youth Servs., 577 F.3d 186, 190 n.5 (3d

Cir. 2009); Maldonado v. Fontanes, 568 F.3d 263, 274 n.7

(1st Cir. 2009).

I would choose to follow an approach signaled by a prior

Ninth Circuit opinion whenever we can because it makes

good sense and assists us to keep our law intact. That so many

other circuit opinions have also taken the same course

strongly suggests that it would be a better practice to do so

here. Although I do not disagree with the standard we adopt

in our opinion, I would have preferred to follow the wisdom

of prior circuit opinions (including our own) and resolve this

case without adopting any new standard at all.