713 F.3d 248 (5th Cir. 2013), 12-50044, Davila v. United States

Docket Nº:12-50044.
Citation:713 F.3d 248
Opinion Judge:DENNIS, Circuit Judge:
Party Name:Jose DAVILA and Marcela C. Duarte, Plaintiffs-Appellants v. UNITED STATES of America, Unknown Agents of United States Customs and Border Protection; Iftikhar Khan; Blake Trester; Phil Basak; Brian L. Sikes; Mark Spier; Unknown Rangers of the United States National Park Service; and Unknown Brewster County Sheriff Deputies, Defendants-Appellees.
Attorney:Susan Leigh Watson, Attorney, Texas RioGrande Legal Aid, Incorporated, Melody Fowler-Green, Yezbak Law Offices, Nashville, TN, Javier Saenz, Texas RioGrande Legal Aid, Incorporated, El Paso, TX, Plaintiffs-Appellants. Zachary Carl Richter, Assistant U.S. Attorney, U.S. Attorney's Office, Western ...
Judge Panel:Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
Case Date:April 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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713 F.3d 248 (5th Cir. 2013)

Jose DAVILA and Marcela C. Duarte, Plaintiffs-Appellants

v.

UNITED STATES of America, Unknown Agents of United States Customs and Border Protection; Iftikhar Khan; Blake Trester; Phil Basak; Brian L. Sikes; Mark Spier; Unknown Rangers of the United States National Park Service; and Unknown Brewster County Sheriff Deputies, Defendants-Appellees.

No. 12-50044.

United States Court of Appeals, Fifth Circuit.

April 3, 2013

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Susan Leigh Watson, Attorney, Texas RioGrande Legal Aid, Incorporated, Melody Fowler-Green, Yezbak Law Offices, Nashville, TN, Javier Saenz, Texas RioGrande Legal Aid, Incorporated, El Paso, TX, Plaintiffs-Appellants.

Zachary Carl Richter, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, Austin, TX, for Defendants-Appellees.

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

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

DENNIS, Circuit Judge:

Plaintiffs Jose Davila (" Davila" ) and Marcela Duarte (" Duarte" ) appeal the district court's dismissal with prejudice of their claims brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 (" FTCA" ), Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 42 U.S.C. § 1983. The plaintiffs claim that in two incidents— arising out of a January 7, 2009 checkpoint search and an April 9, 2009 felony traffic stop— U.S. Border Patrol agents, National Park Service rangers, and Brewster County sheriff deputies violated their Fourth and Fourteenth Amendment rights against illegal search and seizure, excessive use of

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force, and illegal arrest; falsely imprisoned them; assaulted them; intentionally inflicted emotional distress on them; and acted negligently in issuing a Be-On-The-Lookout (" BOLO" ) Alert for Davila's vehicle. The plaintiffs sued the United States; unknown agents of U.S. Customs and Border Protection (" Unknown CBP Agents" ); Unknown Brewster County Sheriff Deputies; and five named National Park Service (" NPS" ) Rangers, Iftikhar Khan, Blake Trester, Phil Basak, Brian Sikes, and Mark Spier (" Named NPS Rangers" ), and Unknown NPS Rangers (collectively, " NPS Rangers" ). The district court dismissed all the claims with prejudice. We REVERSE the dismissal of Davila's FTCA claim of false imprisonment arising out of his arrest and detention following the search of his car at a checkpoint on January 7, 2009, and AFFIRM the district court's dismissal of the remaining claims.

BACKGROUND

A.

Davila's suit arises out of checkpoint and traffic stop incidents that occurred in Brewster County, Texas. Duarte's suit arises only from the latter incident. The first incident (" the checkpoint incident" ) occurred on January 7, 2009, at the U.S. Border Patrol checkpoint near Marathon, Texas. Jose Davila, his son, Tocho Davila-Luna (" Tocho" ), and Davila-Luna's girlfriend, Yesenia Mata (" Mata" ) were traveling in a truck from Mexico into the United States. They stopped at the checkpoint. A U.S. Customs and Border Protection (" CBP" or " Border Patrol" ) agent determined that they were all U.S. citizens, and referred the truck for further inspection. The search revealed no contraband; the agents found only a pair of boots, a chicken, and a cooler. The Border Patrol agent decided to detain them until a K-9 unit could be brought in from a different checkpoint. Davila was told that they would have to wait twenty minutes, but the defendants later alleged that the other checkpoint was located fifty miles away. After two hours elapsed without the K-9 unit arriving, Tocho became impatient and left in the vehicle. Davila and Mata remained at the inspection site. A Brewster County sheriff deputy who was at the checkpoint pursued Tocho in a high-speed chase and fired his gun at Tocho's truck. Tocho stopped the truck and was subdued and arrested. While being placed into a holding cell at the checkpoint, Tocho kicked the door, which hit the agent's left hand.

While the pursuit was ongoing, Davila was detained at a cell at the checkpoint and questioned about his son. He asserts that the Unknown CBP Agents attempted to coerce him into making a false statement against his son. Davila and Mata then were handcuffed and taken to a county jail in Alpine, Texas. Davila was processed, given prison clothing, and placed in a cell. He remained in custody until the middle of the night, when he was released without explanation. No criminal complaint was ever filed against Davila. Tocho was released and later charged with one count of high-speed flight and two counts of assaulting, impeding, or resisting a federal officer. He failed to appear to answer the charges and a warrant was issued for his arrest. As of April 4, 2009, Tocho remained at large.

The second incident (" the Big Bend traffic stop" ) occurred on April 4, 2009, in Big Bend National Park, in Texas. Davila, accompanied by his minor grandson and Duarte, traveled in his vehicle, a red Kia, to the park, picked up a park pass without incident, and proceeded south through the park. Unbeknownst to Davila, a CBP Agent had issued a BOLO for Davila's car because it had once been associated with

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Tocho. Once inside the park, the Named NPS Rangers— Khan, Trester, Basak, Sikes, and Spier— and the Unknown NPS Rangers pulled Davila over and surrounded his car with several law enforcement vehicles. 1 The Named NPS Rangers got out of their vehicles and aimed their weapons at Davila, his grandson, and Duarte and kept their weapons trained on them for the duration of the traffic stop. Davila, Duarte, and Davila's minor grandson were ordered out of the car, handcuffed, and required to kneel on the ground. Duarte was left directly behind the exhaust pipe of a law enforcement vehicle that remained running, and she was not allowed to move for some period of time. While Davila, Duarte, and Davila's grandson remained handcuffed, the NPS Rangers searched the vehicle.

The NPS Rangers allege that they pulled Davila over in part to respond to the BOLO that had been issued on Davila's car. They allege that they were worried that Tocho, a fugitive, was concealed in the car and might have weapons. They searched the cabin of the car and forced open the trunk. They did not find Tocho or any weapons or contraband. At some point during or after this search, the NPS Rangers removed Davila, Duarte, and Davila's grandson's shoes and placed them into separate vehicles. The NPS Rangers did not run a check to verify their identities until thirty-eight minutes after the initial stop. The check took six minutes. After that, Davila, Duarte, and Davila's grandson remained for some time in the custody of the NPS Rangers until an unknown Border Patrol agent arrived and instructed the NPS Rangers to release them. Before they released Davila, he was required to take a breathalyzer test three times, which he passed. They informed Davila that his license was expired and that Duarte would have to drive.2 Davila, Duarte, and Davila's grandson were then allowed to leave.

B.

The plaintiffs submitted separate administrative claims for relief to the Department of Homeland Security and to the Department of the Interior for damages arising out of the checkpoint incident and the Big Bend traffic stop. Both claims were denied. On October 5, 2010, the plaintiffs filed their original complaint in district court. The complaint raised ten causes of action. The first four counts pertained to the checkpoint incident. Davila claimed that the CBP Agents violated his Fourth Amendment right against illegal search and seizure (Count 1), and that the government was liable under the FTCA for false imprisonment and intentional infliction of emotional distress (Counts 2 and 3). Davila also claimed that Unknown Brewster County Sheriff Deputies violated his Fourth and Fourteenth Amendment rights against illegal arrest (Count 4). The remaining six claims pertained to the Big Bend traffic stop. Davila and Duarte brought suit against the Named NPS Rangers, Unknown Rangers, and the Unknown CBP Agent for violating

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their Fourth Amendment rights against illegal search and seizure (Count 5); and against the NPS Rangers and Unknown Rangers for violating their Fourth Amendment rights against use of excessive force (Count 6). The plaintiffs also brought four FTCA claims against the government arising out of the Big Bend traffic stop: assault (Count 7); intentional infliction of emotional distress (Count 8); false imprisonment (Count 9); and negligent breach of duty in failing to properly review relevant records before issuing a BOLO that would subject " innocent U.S. citizens to unreasonable search and seizure, detention, assault, and battery" (Count 10).

The NPS Rangers, the defendants named in Counts 5 and 6, moved for summary judgment on qualified immunity grounds. With regard to both the illegal search and seizure claim and the excessive force claim, the NPS Rangers asserted that the plaintiffs failed to show that their constitutional rights were violated, or that such rights were clearly established at the time of the traffic stop. The government filed a motion to dismiss counts 2, 3, and 10 for lack of subject-matter jurisdiction. The government also filed a motion to dismiss counts 7, 8, and 9 for failure to state a claim or, alternatively, for summary judgment on those counts. In a Memorandum Opinion and Order filed October 31, 2011, the district court granted these motions and dismissed Counts 5 and 6 on qualified immunity grounds; dismissed counts 2, 3, and 10 for lack of...

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