On Jun. 8, 2015, civil detainees confined in a U.S. Customs and Border Protection (CBP) "hold room" within the Tucson Sector of the U.S. Border Patrol filed this class action lawsuit in the U.S. District Court for the District of Arizona, alleging violations of the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act. All plaintiffs were apprehended at or near the U.S. border with Mexico and detained. The plaintiffs, represented by attorneys from the ACLU, the National Immigration Law Center, the Lawyers' Committee for Civil Rights, and private counsel, sought declaratory and injunctive relief, alleging that they were subjected to inhumane and punitive conditions while being detained in holding cells.
On Aug. 14, 2015, the District Court (Senior Judge David C. Bury) granted plaintiffs' motion for expedited discovery. 2015 WL 5086291. On Aug. 28, 2015, plaintiffs moved for sanctions against defendants, asserting that defendants had violated discovery rules by destroying critical video evidence of unconstitutional conditions of confinement in Tuscon Sector CBP facilities. Judge Bury on Sep. 28, 2015 granted plaintiffs' motion for sanctions in part. Judge Bury found that defendants had caused spoliation of evidence and created prejudice against plaintiffs, because the destroyed videos contained the only visual evidence of conditions of confinement in these facilities. Consequently, Judge Bury ordered that defendants immediately produce all existing and retained video evidence of detainee holding areas that were the subject of this case.
On Jan. 11, 2016, Judge Bury certified the case as a class action. The class consisted of all individuals who at that time or in the future were detained for one or more nights at a Tuscon Sector CBP facility. The same day, Judge Bury issued another order granting in part and denying in part defendants' motion to dismiss, so that plaintiffs' Administrative Procedure Act claims were dismissed (on grounds that the challenged CBP conduct was not "final agency action") but so that plaintiffs' constitutional claims remained.
On Jan. 28, 2016, Phoenix Newspapers, Inc., moved to intervene for the limited purpose of opposing defendants' Dec. 18, 2015 motion to seal various documents, and securing an order to unseal court records. Judge Bury granted that motion on Jun. 26, 2016, holing that the public interest in access to the record outweighed defendants' rationale for keeping many documents sealed. Rejecting defendants' general reasons based on privacy and law enforcement, Judge Bury asked defendants for a more specific showing of harm from the disclosure of any document not already covered by a protective order, and ordered the unsealing of several documents.
On Feb. 4, 2016, referring back to the Jan. 11 class certification order, Judge Bury ordered that "one or more nights" be understood to mean "more than 8 hours within the same calendar day."
On Mar. 10, 2016, plaintiffs filed a reply brief in support of their motion for a preliminary injunction. Plaintiffs argued that if defendants detained an immigrant for over eight hours in a calendar day, then defendants were obligated to provide minimum, constitutional care while that immigrant was in their custody.
On Jun. 10, 2016, Judge Bury set a briefing schedule with discovery due by Mar. 23, 2017, dispositive motions due by Apr. 24, 2017, and a proposed pretrial order due by May 24, 2017.
On Jun. 27, 2016, Judge Bury again amended the Jan. 11 order certifying the class, to include all individuals at that time or in the future who were detained at a Tuscon Sector CBP facility (regardless of duration).
On Jul. 26, 2016, Judge Bury denied defendants' Jun. 21, 2016 motion for a protective order, mandating that defendants comply with procedures for asserting privileged information.
On Aug. 3, 2016, Judge Bury granted in part and denied in part defendants' Dec. 18, 2015 motion to partially seal plaintiffs' motion for a preliminary injunction. Subsequently, on Aug. 17, 2017, plaintiffs filed a partially-redacted brief in support of their motion for a preliminary injunction.
On Nov. 14-15, 2016, the court held a hearing, and on Nov. 18 issued an order granting plaintiffs' motion for the preliminary injunction. In the order, Judge Bury found that plaintiffs had established a likelihood of success on the merits of their constitutional claims, because violation of a constitutional right would constitute irreparable injury. Judge Bury stated that if defendants held detainees long enough for detainees to need to sleep, then defendants must maintain conditions of confinement adequate for detainees' physical needs during that time (as there was no security rationale overriding this obligation). Defendants on Dec. 2 moved for reconsideration. On Jan. 3, 2017, Judge Bury denied defendants' Dec. 2, 2016 motion for reconsideration, but clarified that the twelve-hour confinement period begins when a detainee arrives at a CBP station.
On Dec. 27, 2016, Judge Bury extended the deadlines for discovery to be due by Jun. 30, 2017, dispositive motions by Jul. 31, 2017, and a joint proposed pretrial order by Aug. 30, 2017.
On Jan. 9, 2017, plaintiffs moved for sanctions against defendants for civil contempt, alleging violation of the court's Aug. 14, 2015 and Sep. 28, 2015 orders mandating that defendants produce relevant video evidence. Plaintiffs alleged that defendants had failed to preserve from destruction videos of Tuscon Center hold rooms, as well as had failed to inform plaintiffs or the court of this problem. Defendants responded on Feb. 3.
On Mar. 2, 2017, both parties filed notices to appeal to the 9th Circuit Court of Appeals, from Judge Bury's Nov. 18, 2016 and Jan. 3, 2017 orders. The 9th Circuit on Mar. 3 opened two new dockets, Nos. 17-15381 and 17-15383, and set a briefing schedule. The court then (on Mar. 9) set a mediation hearing for Mar. 20, but on that date, the court declined to include the case in its mediation program.
Back in the District Court, on Mar. 13, 2017, Judge Bury granted in part and denied in part plaintiffs' Jan. 9, 2017 motion for sanctions against defendants for civil contempt. Judge Bury found that defendants had failed to take all reasonable steps within their power to preserve video evidence. While some violations were not good-faith or reasonable interpretations of court orders, however, other violations were merely technical or de minimis. Judge Bury ordered defendants to improve certain aspects of their data archiving, to meet with the plaintiffs about their progress, and to pay plaintiffs' attorneys' fees and costs incurred in connection with this data discovery. Defendants responded on Mar. 20, stating that they were now either in compliance or on track to being in compliance with all requirements of the court's Mar. 13 order.
In the 9th Circuit Court of Appeals, on Mar 30, 2017, plaintiffs filed their brief on cross-appeal. Plaintiffs acknowledged that the district court had correctly recognized detainees' due process rights to medical care, beds, and personal hygiene. Nevertheless, plaintiffs argued, the district court had erred as a matter of law by allowing CBP to deny detainees medical screenings and prescriptions by trained personnel, to deprive detainees of beds when held overnight, and to provide merely body wipes in lieu of showers.
This case is ongoing in both the district court and the court of appeals.Frances Hollander - 10/04/2015
Ava Morgenstern - 04/04/2017