                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 25 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAVIER TORRES; LIA                               No.   16-16315
RIVADENEYRA, individually and on
behalf of all others similarly situated,         D.C. No. 2:06-cv-02482-SMM

              Plaintiffs-Appellants,
                                                 MEMORANDUM*
 v.

TERRY GODDARD, in his individual
capacity; CAMERON H. HOLMES, AKA
Kip Holmes, in his individual capacity;
THOMAS C. HORNE, Attorney General,
Attorney General of the State of Arizona,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                  Stephen M. McNamee, District Judge, Presiding

                        Argued and Submitted July 27, 2017
                               Pasadena, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BYBEE, NGUYEN,** and OWENS,*** Circuit Judges.

      Named plaintiffs Javier Torres and Lia Rivadeneyra brought this putative

class action under 42 U.S.C. § 1983 against the Attorney General and Assistant

Attorney General of the State of Arizona. They allege that two warrants issued by

the Maricopa County Superior Court against plaintiffs’ money orders with Western

Union Financial Services (“Western Union”) violated their Fourth and Fourteenth

Amendment rights. The district court denied class certification and granted

defendants’ motion for summary judgment, holding that defendants were entitled

to absolute immunity for their actions. On appeal we held that although defendants

were absolutely immune for the preparation and application of the warrants, they

could not claim the same absolute immunity as to their execution and service, and

so we affirmed in part and reversed in part for further proceedings on the question

of qualified immunity. Torres v. Goddard, 793 F.3d 1046, 1053–59 (9th Cir.

2015). On remand, the court again denied class certification, and granted


       **
            This case was submitted to a panel that included Judge Kozinski.
Following Judge Kozinski’s retirement, Judge Nguyen was drawn by lot to replace
him. Ninth Circuit General Order 3.2h. Judge Nguyen has reviewed all case
materials.
       ***
            This case was submitted to a panel that included Judge Reinhardt.
Following Judge Reinhardt’s passing, Judge Owens was drawn by lot to replace
him. Ninth Circuit General Order 3.2h. Judge Owens has reviewed all case
materials.
                                          2
defendants’ motion for summary judgment, holding that qualified immunity

protected defendants against these claims. The court reasoned that there was no

violation in that defendants “acted reasonably in service and execution . . .

believing that the warrants were supported by probable cause,” and that even if a

violation had been committed, no clearly established law gave them fair notice of

liability. Torres and Rivadeneyra appeal.

      We have appellate jurisdiction under 28 U.S.C. § 1291. We review de novo

whether qualified immunity protects government officers from liability. Prison

Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). We review the denial

of class certification for an abuse of discretion. Bateman v. Am. Multi-Cinema,

Inc., 623 F.3d 708, 712 (9th Cir. 2010).

      We presume the parties’ familiarity with the facts of this case as set forth in

our published opinion, see Torres, 793 F.3d at 1048–50, and as set forth in the

district court’s order. After consideration of the briefs, record, and argument, we

affirm.

      1.     Torres and Rivadeneyra first argue that defendants are not entitled to

qualified immunity for the execution and service of the warrants, because the

warrants were insufficiently particularized. They argue that the Attorney General’s

use and issuance of “criteria-based” warrants violates the requirement of


                                            3
particularized probable cause, see Ybarra v. Illinois, 444 U.S. 85, 91 (1979), and

the prohibition on using profile evidence as probable cause, see United States v.

$49,576.00 U.S. Currency, 116 F.3d 425, 427–28 (9th Cir. 1997), and that both

propositions were clearly established.

      Even assuming plaintiffs’ Fourth Amendment rights were violated, such a

violation was not clearly established at the time. This second prong of the

qualified immunity analysis requires us to examine the “contours” of the plaintiffs’

Fourth Amendment rights to determine whether those particular rights were

“clearly established,” Hope v. Pelzer, 536 U.S. 730, 739 (2002), and ask whether a

“reasonable official” would have known that “what he [was] doing violate[d] that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Plaintiffs carry the

burden of showing that the law was clearly established at the time of the alleged

violation, see Davis v. Scherer, 468 U.S. 183, 197 (1984), and we define “clearly

established law” not at a high level of generality, but with a fair degree of

granularity, Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation omitted).

      We agree with the district court’s analysis, and we find that the cases cited

by plaintiffs would not have provided defendants with notice in 2006 that their

conduct constituted an unconstitutional seizure in violation of plaintiffs’ Fourth

Amendment rights. The cases they cite are simply too general to have done so.


                                           4
See, e.g., Ybarra, 444 U.S. at 90 & n.2 (warrant that broadly directed the police to

search “the following person or place: . . . the Aurora Tap Tavern. . . . [a]lso the

person of ‘Greg’” was not supported by probable cause); $49,576.00, 116 F.3d at

427–28 (affidavit by arresting officer noting merely that “appellant fits a drug

courier profile” was insufficient for probable cause). “[P]robable cause requires

only a probability or substantial chance of criminal activity, not an actual showing

of such activity,” and “innocent behavior frequently will provide the basis for [it].”

Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). Although “profile” evidence that

“describe[s] a very large category of presumably innocent [persons]” does not

alone establish probable cause, Reid v. Georgia, 448 U.S. 438, 441 (1980) (per

curiam), the program at issue here identified transfers with an extremely high

statistical likelihood of a criminal nexus. Whether or not the warrants were

properly issued, we agree with the district court that defendants are entitled to

qualified immunity as to their service and execution.

      2.     Torres and Rivadeneyra argue that the district court ignored our

remand of their Due Process and Commerce Clause claims, and that the district

court erred in refusing to certify their class claims. As to the former argument,

even if those claims survived our remand, they are nonetheless meritless because

the claimed violations of the Due Process and Commerce Clauses are even less


                                           5
“clearly established” than the claimed violations of the Fourth Amendment for

which defendants are entitled to qualified immunity. As to the latter argument,

“the district court need not inquire as to whether [a] meritless claim should form

the basis of a class action.” Corbin v. Time Warner Entm’t-Advance/Newhouse

P’ship, 821 F.3d 1069, 1085 (9th Cir. 2016).

      The judgment of the district court is AFFIRMED.




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