CA9: Injunctive relief against records surreptitiously collected is a possible remedy for a 4A violation

In a wide ranging case against the FBI for conducting covert surveillance in a mosque and targeting Muslims allegedly solely based on their religion, the court holds that injunctive relief to expunge what was seized is a possible remedy for unlawful surveillance. Thus, the district court erred in dismissing that claim where the government cited no authority to the contrary, and there was. Fazaga v. FBI, 2019 U.S. App. LEXIS 6028 (9th Cir. Feb. 28, 2019):

A. Fourth Amendment Injunctive Relief Claim Against the Official-Capacity Defendants

The Government’s primary argument for dismissal of the constitutional claims brought against the official-capacity defendants, including the Fourth Amendment claim, is that the injunctive relief sought—the expungement of all records unconstitutionally obtained and maintained—is unavailable under the Constitution. Not so.

We have repeatedly and consistently recognized that federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights. The Privacy Act, 5 U.S.C. § 552a, which (1) establishes a set of practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in records systems by federal agencies, and (2) creates federal claims for relief for violations of the Act’s substantive provisions, does not displace the availability of expungement relief under the Constitution. Previous cases involving claims brought under both the Privacy Act and the Constitution did not treat the Privacy Act as displacing a constitutional claim, but instead analyzed the claims separately. And the circuits that have directly considered whether the Privacy Act displaces parallel constitutional remedies have all concluded that a plaintiff may pursue a remedy under both the Constitution and the Privacy Act.

In addition to its Privacy Act displacement theory, the Government contends that even if expungement relief is otherwise available under the Constitution, it is not available here, as Plaintiffs “advance no plausible claim of an ongoing constitutional violation.” Again, we disagree.

This court has been clear that a determination that records were obtained and retained in violation of the Constitution supports a claim for expungement relief of existing records so obtained. As Norman-Bloodsaw explained:

Even if the continued storage, against plaintiffs’ wishes, of intimate medical information that was allegedly taken from them by unconstitutional means does not itself constitute a violation of law, it is clearly an ongoing “effect” of the allegedly unconstitutional and discriminatory testing, and expungement of the test results would be an appropriate remedy for the alleged violation. … At the very least, the retention of undisputedly intimate medical information obtained in an unconstitutional and discriminatory manner would constitute a continuing “irreparable injury” for purposes of equitable relief.

135 F.3d at 1275; see also Wilson v. Webster, 467 F.2d 1282, 1283-84 (9th Cir. 1972) (holding that plaintiffs had a right to show that records of unlawful arrests “should be expunged, for their continued existence may seriously and unjustifiably serve to impair fundamental rights of the persons to whom they relate”).

In short, expungement relief is available under the Constitution to remedy the alleged constitutional violations. Because the Government raises no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed.

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