Martinez-Aguero v. Gonzalez

• Decision Date: 04 August 2006
• Docket Number: No. 05-50472.,05-50472.
• Citation: 459 F.3d 618
• Parties: Maria Antonieta MARTINEZ-AGUERO, Plaintiff-Appellee, v. Humberto GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 618

459 F.3d 618

Maria Antonieta MARTINEZ-AGUERO, Plaintiff-Appellee, v. Humberto GONZALEZ, Defendant-Appellant.

No. 05-50472.

United States Court of Appeals, Fifth Circuit.

August 4, 2006.

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Jonathan Bridges (argued), Susman Godfrey, Dallas, TX, Francisco X. Dominguez, El Paso, TX, Suyash Agrawal, Susman Godfrey, Houston, TX, Javier N. Maldonado, Lawyers Committee for Civil Rights, David Armendariz, Joseph B. DeMott Law Firm, San Antonio, TX, for Plaintiff-Appellee.

Jeanne Cezanne Collins (argued), Ken Kelly Slavin, Kemp Smith, El Paso, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, WIENER, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

We must decide whether aliens stopped at the border have a constitutional right to be free from false imprisonment and the use of excessive force by law enforcement personnel. Concluding that they do, we affirm the denial of Humberto Gonzalez's motion for summary judgment that he pursued on the basis of a claim of qualified immunity, and we remand for further proceedings.

I.

On interlocutory appeal of the denial of a summary judgment motion seeking dismissal for qualified immunity, we review the facts in the light most favorable to the plaintiff. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.2004) (en banc) (citing Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000)). Those facts are as follows:

Plaintiff Maria Martinez-Aguero is a forty-nine-year-old citizen and resident of Mexico who visits the United States once a month to accompany her aunt to the El Paso Social Security office. Though she normally enters the country using a valid border-crossing card (which is the same thing as a visitor visa), her card had become invalid when the former Immigration and Naturalization Service decided to issue biometric, machine-readable cards for increased security. On July 3, 2001, Martinez-Aguero went with her aunt and mother to the U.S. consular office to apply for new cards and asked how she could legally enter the United States while waiting for the cards to arrive in the mail. Officials told her she could get a stamp on her old cards that would allow her to travel in the interim. For the next three months she used the stamped card to cross the border without incident.

On October 4, Martinez-Aguero and her aunt made their usual bus trip to El Paso. United States immigration officials stopped the bus within the zone outside the port of entry but within the territorial United States. Gonzalez, an INS border patrol agent, ordered Martinez-Aguero and her aunt off the bus and requested to see their documents. He told Martinez-Aguero that her visa had expired, so she could not enter the country.

Martinez-Aguero asked to speak to someone in authority, and Gonzalez replied in Spanish, "I am in charge!" Martinez-Aguero asked him why he would not help her, because he also was Mexican. This agitated Gonzalez, who pointed to patches on his uniform and shouted, "Look at me! I am not a Mexican! Look at my uniform!" He then yelled profanities at them in Spanish and threw their visas to the ground.

Martinez-Aguero picked her visa up and made a sarcastic remark to her aunt about Gonzalez's bad language, which he apparently overheard. She and her aunt began walking back in the direction of Mexico when Gonzalez yelled, "Stop in the name of the law!"

Martinez-Aguero alleges in her affidavit that Gonzalez then "grabbed [her] arms, twisted them behind [her] back, pushed her into a concrete barrier, which hit [her] in the stomach ... [and] then started kicking [her] with his knees in [her] lower back." Another agent then took Martinez-Aguero into an office and handcuffed her to a chair. Gonzalez allegedly came in and showed her scratches on his arms and told her that he was going to claim that she cut him with her fingernails.

Shortly thereafter, Martinez-Aguero, who is epileptic, suffered a seizure while still handcuffed to the chair. She was given oxygen, and when she recovered she was questioned by officials before being permitted to leave. She suffered another seizure after arriving home and was taken to the hospital. She claims she now suffers from recurrent seizures (before the beating she had not suffered a seizure for 17 years), memory problems, back injuries, and continual pain. She alleges she cannot walk long distances or adequately clean her house anymore.

II.

Martinez-Aguero sued Gonzalez for assault, battery, and false arrest under the Federal Tort Claims Act and for false arrest and excessive use of force under the Fourth and Fifth Amendments. Gonzalez moved for summary judgment, asserting qualified immunity. The district court denied the motion, and Gonzalez filed an interlocutory appeal.

III.

Our standard of review for interlocutory appeals differs from the usual Federal Rule of Civil Procedure 56 standards for summary judgment. We lack jurisdiction to review the district court's finding that no genuine issue of material fact exists; rather, we "consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment." Kinney, 367 F.3d at 348. If the interlocutory appeal concerns summary judgment on a defense of qualified immunity, we must view the facts in the light most favorable to the plaintiff. See id. (citing Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.2000)). Our review of the legal significance of the facts is de novo. See id. at 349.

IV.

We use a two-part test to determine whether an officer is entitled to qualified immunity: first, do the facts alleged show that he has violated plaintiff's constitutional rights, see Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); second, were the rights clearly established at the time of the alleged violation? See id. To determine whether a right is clearly established, we ask "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.

The only claims relevant to this appeal are Martinez-Aguero's Bivens actions under the Fourth and Fifth Amendments.¹ Specifically, she alleges wrongful arrest under the Fourth Amendment and excessive force under the Fourth and Fifth Amendments. We must determine whether (1) Martinez-Aguero is entitled to the protection of these constitutional guarantees, (2) the facts she alleges would suffice to show that Gonzalez violated her rights, and (3) the rights were clearly established at the time of the incident.

A.

Gonzalez argues that Martinez-Aguero had no constitutional rights at the time of the alleged incident because she was an alien who attempted to enter the country illegally and was not admitted. Gonzalez relies on United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), which held that an alien who has no voluntary attachment to the United States enjoys no extraterritorial Fourth Amendment protection.² The Court in Verdugo-Urquidez analyzed the text and history of the phrase "the People" in the Fourth Amendment and concluded that it "refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Id. at 265, 110 S.Ct. 1056. The Court acknowledged that it had held that aliens enjoy certain constitutional rights, but those cases "establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country."³ Gonzalez also relies on Johnson v. Eisentrager, 339 U.S. 763, 765-66, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), in which the Court rejected the extraterritorial application of the Fifth Amendment.

The crucial distinction is "that certain constitutional protections available to persons inside the United States are unavailable to aliens outside our geographic borders." Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Court in Zadvydas reasoned that a statute that authorized the indefinite detention of removable aliens present in the U.S. would pose serious constitutional problems. See id. at 682, 121 S.Ct. 2491. The Court distinguished Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), which held that a lawfully admitted alien who left the country and was denied reentry for security reasons could be indefinitely detained at Ellis Island. The "critical" difference for the Court was that the alien in Mezei never reentered the United States; "[h]ence, he was treated, for constitutional purposes, as if stopped at the border." See Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491.⁴

This doctrine is called the "entry fiction," and Gonzalez urges its application to this case: Because Martinez-Aguero was denied entry into the United States, and because the fiction requires us to treat her as if stopped at the border (even though she was technically present in U.S. territory), and because the Fourth and Fifth Amendments have no extraterritorial application, Gonzalez contends he should be entitled to qualified immunity.

We disagree. This conclusion is inconsistent with Lynch v. Cannatella, 810 F.2d 1363 (5th Cir.1987), in which we specifically limited the application of the "entry fiction" to immigration and deportation matters:

The "entry fiction" that excludable aliens are to be treated as if detained at the border despite their physical presence in the United States determines the aliens' rights with regard to immigration and deportation proceedings. It does not limit the right of excludable aliens detained within United States territory to humane treatment.

Id. at 1373.

We reasoned in Lynch that the sovereign should enjoy particularly broad discretion in...