In Hernandez v. Skinner, published August 10, 2020, the 9th Circuit Court of Appeals affirmed a district court order denying summary judgment to a sheriff's deputy and a Montana state court judge on the ground of qualified immunity. The plaintiff accompanied his wife to a hearing on the wife's request for a protection order, to serve as a witness. While the plaintiff was waiting outside the courtroom, the subject of the requested order testified that the plaintiff was "not a legal citizen." The judge contacted the sheriff's office, and requested deputies because he had "illegal immigrants out in the hallway." The judge then told the wife and the defendant he would arrest them and charge them with contempt if they left the courtroom. He wanted to prevent them from warning the plaintiff. The defendant deputy arrived. The judge told him that plaintiff and another witness were "illegal aliens." The deputy went to the plaintiff in the hallway and asked him for identification and his immigration status. The plaintiff handed the deputy an expired Mexican consulate ID card. It did not indicate his immigration status. The deputy handcuffed the plaintiff, searched him, and placed him in a patrol car outside. The deputy spoke with an ICE agent who asked the deputy to transport the plaintiff to a detention facility. The plaintiff was in ICE detention for three months before the Department of Homeland Security dismissed the deportation proceeding it had filed against him. The plaintiff sued the judge and the deputy under 42 U.S.C. section 1983 for allegedly violating his Fourth Amendment rights. The judge did not claim judicial immunity. The issue was whether the defendants were entitled to qualified immunity.
The 9th Circuit agreed with the district court that the defendants were not entitled to qualified immunity. Because an alien's illegal presence (as opposed to illegal entry) in the country is a civil violation, not a crime, 9th Circuit authority had established at the time of the stop that suspicion or knowledge that a person is unlawfully present in the United States is not sufficiently premised on criminality to justify a Terry stop. The deputy's stop and search of the plaintiff therefore violated the Fourth Amendment. The deputy conceded he did not have probable cause to arrest the plaintiff until he contacted ICE. The facts indicated that once the plaintiff was in the deputy's patrol car, the Terry stop had turned into an arrest. A reasonable person in the situation would not have felt free to leave. The arrest without probable cause violated the Fourth Amendment. The 9th Circuit further agreed with the district court that the judge was an "integral participant" in the deputy's unlawful actions. While the 9th Circuit has not determined whether a "cause in fact" or "probable cause" test applies to determining "integral participants" in a section 1983 case, the judge's conduct in summoning the deputy, ordering that he wanted the plaintiff "picked up," and barring the plaintiff's wife from leaving the courtroom to warn the plaintiff. The plaintiff's stop and arrest were foreseeable consequences. 9th Circuit precedent was sufficient to constitute the "body of relevant case law" necessary to clearly establish that the stop and arrest under the circumstances violated the Fourth Amendment. Both defendants therefore violated clearly established law.