Court: Border Patrol bosses can’t be sued for officers’ actions

WASHINGTON — A federal appeals court ruled Wednesday that Border Patrol supervisors cannot be sued for the actions of subordinates who routinely stopped vans “based principally on ‘the Latin, Hispanic or Mexican appearance’ ” of their occupants.

A three-judge panel of the 9th U.S. Circuit Court of Appeals dismissed claims against five supervisors, saying it was not clear they knew that frontline officers under their supervision were taking unlawful actions in the traffic stops.

But the court upheld the case against a sixth supervisor, who took part in stops that do not appear to have been made for “any observable reason other than race.”

A spokesman for the Justice Department said only that the government had prevailed in the case and that the next step, if any, would be up to the plaintiffs.

Attorneys for the plaintiffs, Jose and Maria Elena Chavez, could not be reached for comment Wednesday.

The Chavezes operated a shuttle service that made several trips a day between Tucson and the border town of Sasabe, Ariz., beginning in 1995 and continuing through 2001. They never crossed the border, according to court documents, which added that the couple and most of their passengers were Hispanic.

The Chavezes said that Border Patrol agents stopped the vans on “almost a daily basis,” even though there was no basis for doing so except the race of the occupants.

They said agents searched the vans without permission, forced drivers to reverse course or refund passengers’ fares, took property from the vans and would become angry when they did not find undocumented immigrants on board.

Court documents also said the agents occasionally used profanity and ethnic slurs to refer to passengers, and told the drivers they should be able to identify illegal aliens “by their uncleanliness and offensive odor.”

The Chavezes said they complained about the treatment to supervisors in the Tucson sector, but that nothing changed.

They sued four supervisors in the sector as well as the chief border patrol agent for the Tucson sector and the acting commissioner of Immigration and Naturalization Service claiming several constitutional violations, including their Fourth Amendment protection against unreasonable search and seizure.

A district court judge first dismissed the claims against the supervisors in 2002, saying there was no evidence that they were “personally involved or linked to” any of the constitutional wrongs.

The appeals court ordered the case back to district court, which then upheld the Fourth Amendment claims against the supervisors, saying they had either refused to stop actions “they reasonably should have known would cause constitutional violations, acquiesced in constitutional deprivations by subordinates, or displayed callous or reckless indifference.”

But on the latest go-round, the appeals court said a subsequent Supreme Court decision had determined that officials have to act with a “discriminatory purpose” to be cited for a constitutional violation, “rather than knowledge” of a violation.

The appeals panel said the Chavezes had not shown that the five supervisors knew the specifics of the stops, their frequency or legitimacy.

While one supervisor did interrogate Maria Chavez after one stop, the court said he could not have known that the officer making the stop “lacked reasonable suspicion to do so.”

But the sixth supervisor participated in two stops, and the Chavezes “plausibly alleged” that he did so “based solely on their and their passengers’ ‘apparent Mexican ancestry,’ ” the court said. It said he is not shielded from liability.