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PLAINTIFFS FIRST AMENDED ORIGINAL COMPLAINT Page 1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION
RICHARD RYNEARSON, )(
Plaintiff, )( Civil Action No.:DR:12-cv-00024-AM-CW
V. )(
THE UNITED STATES OF AMERICA, )( JURY TRIAL
BORDER PATROL AGENT LANDS,
INDIVID., and BORDER PATROL AGENT )( PLAINTIFFS AMENDED COMPLAINT
CAPTAIN RAUL PEREZ, INDIVID.,
)(Defendants.
PLAINTIFFS FIRST AMENDED ORIGINAL COMPLAINT
NOW COMES Plaintiff RICHARD RYNEARSON amending his complaint as a matter
of course1 pursuant to FCRP 15(a)(1)(B) complaining of THE UNITED STATES, BORDER
1 FRCP 15(a)(1)(B) allows for complaint amendment as a matter of course--that is
without permission of the court or opposing parties--up to 21 days after service of a FRCP
12(b)(6) motion to dismiss Defendants only partially filed their FRCP 12(b)(6) motion August
3, 2012, and then served by mail Exhibit D upon the Court and plaintiff (see ECF docket),
therefore, 3 days are added to the deadline to amend to August 27, 2012. Furthermore, an
amended complaint can serve as a response to a FRCP 12(b)(6) motion to dismiss.
Plaintiff also objects to the inclusion of Exhibits A, B, C and D to defendants motion to
dismiss as such documents are outside the scope of review in a FRCP 12(b)(6) motion to dismiss.
Lovelace v. Software Spectrum, Inc.,78 F.3d 1015, 1017-18 (5thCir. 1996). In the very limited
circumstances where a court may consider extrinsic documents in a FRCP 12(b)(6) motion the
documents must not be critical to the outcome and provide only background facts and are usuallyreserved for unassailable public records--clearly not the case here. Lovelace,78 F.3d at 1017-18.
Additionally, this court has not converted defendants motion to dismiss into a summary
judgment motion. If there is conversion, the parties must be given notice to present additional
materials. Plaintiff objects to such conversion as discovery is needed.
Additionally, Plaintiff unequivocally controverts the accuracy of the affidavit Exhibits of
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PATROL AGENT LANDS, INDIVID., and BORDER PATROL AGENT CAPTAIN RAUL
PEREZ, INDIVID., and will show the Court the following:
JURISDICTION AND VENUE
1. This Court has jurisdiction over Plaintiffs federal claims, under 28 U.S.C.
1331, 42 U.S.C. 1983 and 1988, and supplemental jurisdiction, under 28 U.S.C. 1367(a), to
hear Plaintiffs state law claims, if any. Jurisdiction is also founded under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the United States Constitution, 28 U.S.C. 1343 and 1367, and
Federal Statutes 18 U.S.C. 241, 18 U.S.C. 242.
2. Venue is proper in this Court, under 28 U.S.C. 1391(b), because the incident at
Lands and Perez at least as to their intent in detaining Richard, their belief that they did not
already know Richards immigration status from previous engagements and circumstances, that
they had any reasonable suspicion or probable cause to detain Richard for as long as they did,
that the detention was of a duration that was reasonable, that they asked about immigration status
earlier than well after the reasonable duration for an immigration stop, that the length of time indetention was not an illegal search and seizure, and as to many other of the allegations in the
affidavits. Likewise, neither Lands nor Perez are experts as to what is a reasonable length of
detention. Furthermore, plaintiff needs discovery to get the official reports of the incidents to
check the accuracy of the facts in the affidavits and also by deposition of Lands and Perez.
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issue took place in Uvalde County, Texas, within the United States Western District of Texas.
PARTIES
3. Plaintiff Richard Rynearson (hereinafter Richard or Mr. Rynearson) is a resident
of Curry County, New Mexico.
4. Defendant Border Patrol Agent Lands, Individually, is an individual and can be
served with process at 30 Industrial Park, Uvalde, Texas 78801.
5. Defendant Border Patrol Agent Raul Perez, Individually, is an individual and can
be served with process at 30 Industrial Park, Uvalde, Texas 78801.
6. Defendant United States of America is the employer of defendant border patrol
agents.
7. Richard served a Notice of Claim in compliance with A.R.S. 12-821.01 on August
26, 2010 upon the appropriate individuals, and Defendant U.S. Customs and Border Protection
and United States of America denied this claim by written denial received by Plaintiff on January
14, 2011.
FACTUAL BACKGROUND
8. On March 18, 2010, Richard, a major in the United States Air Force stationed at
Laughlin Air Force Base, was driving in a car by himself on Highway 90 in Uvalde, Texas and
came upon a U.S. Border Patrol checkpoint where he had been many times before. When
Richard first stopped at the checkpoint, with his window partially rolled down, Border Patrol
Agent Lands asked Richard, Is this your vehicle, sir? Richard responded, It is. Agent Lands
then asked, Can you roll down your window, is that as far it will go? Richard answered, No, it
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can go down more. and rolled his window down further. Agent Lands then stated, You said
this is your vehicle? Richard repeated, It is, yeah. Agent Lands asked this because he wanted
to do an illegal search and seizure of Richard and also his vehicle for contraband unrelated to
immigration status without probable cause or reasonable suspicion.
9. Agent Lands then directed Richard to secondary inspection area, and Richard
complied. The dialogue in primary inspection area between the Richard and Agent Lands, prior
to the order to secondary, was a mere ten seconds. At no time was any question relating to
immigration status asked. There was no contraband in Richards car or on his person nor
anything indicating there was. Richard was directed to a secondary inspection area within a few
seconds and asked to get out of his vehicle. There was no legal reason to extend the stop by
directing Richard to the secondary checkpoint and it was never articulated why Richard was
directed to the secondary checkpoint or why he had to get out of the vehicle. At the time Richard
was referred to the secondary inspection area Defendant Agent Lands had no suspicions or cause
to believe that Richard was illegally in the United States or had or was about to commit any
crime.
10. In secondary, Richard provided his military ID and driver's license upon request,
and Agent Lands copied information from those documents to a notepad. Agent Lands asked no
questions, in secondary, relating to immigration status until more than ten minutes into the
detention, and then not until Richard asked Agent Lands if he would like a passport. Agent Lands
ignored the offered passport and responded to the question by asking, Are you a U.S. citizen?
Richard answered, I am a U.S. citizen. Agent Lands then asked, How come you wouldn't
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Richard responded, He never asked me my citizenship. Captain Perez then stated, Let me
check out your passports, and well get you on your way, sir.
13. Captain Perez then began to question the Richard for the identity of his
commanding officer, and then extended the detention by fifteen more minutes as he called
Laughlin Air Force Base. Captain Perez asked for Richards commanding officers name
without any reason other than Perez wanted to harass Richard by getting him into trouble with
the military for not allowing the illegal search and seizure of Richards vehicle and person and to
try to get Richard to comply with further illegal search and seizure of Richards vehicle and
person. Defendant Captain Perez informed Richard he would contact Provost Marshall and CID.
Captain Perez could easily have obtained Richards status from Laughlin Air Force Base in
minutes, even though there was no legal reason to do so.
14. Border Patrol Agent Captain Perez was not concerned with Richards immigration
status but wanted to perform an illegal search and seizure of Richard and Richards vehicle
without any reasonable suspicion or probable cause that any crime was committed or that
contraband was present in the vehicle or that there was anything awry with Richards
immigration status.
15. Captain Perez has rank and supervisory duties over Agent Lands including Lands
methods of questioning, detaining and investigating Richard and Captain Perez was discharging
those duties at the time of Richards illegal detention. Captain Perez knew that Lands was doing
illegal searches and seizures of vehicles and persons at the checkpoint and knew thats what
Lands was trying to do to Richard and his vehicle. Perez believed Richard when Richard said
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Lands had not asked about immigration status but pretended that Lands had so asked. Both Perez
and Lands knew that it was common practice to do illegal searches and seizures of persons and
vehicles at the checkpoint and both participated in the illegal searches and seizures.
16. Richard was detained by Defendants for around thirty-four with no explanation by
Defendants as to the reason behind seizing his person and vehicle. The length of the detention
was far longer than the few minutes needed to check immigration status of a United States citizen
such as Richard Rynearson a Major in the United States Air Force out of Laughlin AFB
presenting U.S. passport, drivers license and military ID.
17. At no time was Richard ever combative during the incident. Richard made no
threatening gestures with his arms or legs or any other part of his body. Richard did not resist
answering any questions that were asked of him except the question about who his commanding
officer was--which was just a technique to gain compliance with illegal searches and seizures--by
Defendant Agent Lands and Defendant Captain Perez.
18. Richard at no time acted is any manner to give defendants reasonable suspicion or
probable cause that a crime had been or currently was being committed or that any federal
immigration statute or any other law had been or was being violated. Richard had not committed
any crime nor was he in violation of any immigration statute or any other law.
19. The detention lasted nearly thirty five minutes. Richard answered every question
asked, with the exception of telling Captain Perez who his military commander was. Richard
complied with every request, other than the order to exit the vehicle. The detention was
unreasonable, far beyond the brief time period necessary to inquire into immigration status.
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20. Defendants were not concerned with immigration status as indicated by the lack
of inquiry into immigration status, ignoring a military ID card showing Richard was a military
officer and, therefore, a U.S. citizen as all military officers are U.S. citizens, ignoring Richards
offering of a passport, the repeated false allegation that Agent Lands had asked for citizenship
status in the ten second primary conversation, and finally by Captain Perez calling Richards
military chain of command despite the over abundance of proof of immigration status at his
disposal.
21. One month later, the Chief Border Patrol Agent for the Del Rio Sector, Agent
Robert L. Harris, sent a letter to Richards military commander Lt. Col Richard L. Nesmith
acknowledging video of the incident on You Tube (a video with sound exists of the entire
incident), and claiming Richards actions were unbecoming an officer. The letter was in full
agreement with all the practices and procedures that the defendants employed that day thereby
ratifying defendants acts of illegal detention and search. The letter criticized Richards acts and
was designed to make Richard be quiet about the illegal detention and search of Richard and his
vehicle by Lands and Perez. In fact their actions of illegal detention and search were praised by
the Border Patrol.
22. Neither Agents Lands nor Agent Perez were disciplined or retrained for their
wrongful conduct when their exact actions were completely reviewed by the Border Patrol nor
were they told to do anything different from the acts and practices on the videotape.
23. On at least three previous occasions Richard had been stopped and detained at the
same border station longer than necessary to determine immigration status and on each of those
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occasions there was no reasonable suspicion or probable cause that Richard had been or was
committing a crime or any violation of the law immigration or otherwise. Richard always acted
in a lawful manner and answered all questions. On one such occasion Richards car was illegally
searched and Richard sent a letter to the Del Rio border patrol chief to complain. At a stop after
the letter was sent the checkpoint border patrol agent said something to the effect of you are the
only pilot who wont answer where youre going.
24. In November 2007, Richard was stopped at the same Uvalde checkpoint and refused
to tell the border patrol his travel plans. The border patrol agent then ordered Richard out of the
car, and Richard asked if he had probable cause. The dog handler then claimed, "My dog gives
me probable cause," fabricating that the dog had hit on the car. Richard exited the vehicle and the
agents performed a search of Richards vehicle without consent or probable cause or reasonable
suspicion and took Richards belongings out of the car and threw them on the ground. Nothing
was found. Richard sent a letter to the Chief of the Border Patrol about the incident but nothing
was done.
25. On August 14, 2008, Richard was stopped at the border checkpoint and refused to
tell the border patrol his travel plans and that he thought it was an invasion of privacy. The
border patrol agent then ordered Richard to open his trunk. Richard then asked if the agent had
reasonable suspicion. The agent then asked the dog handler if he had run the dog yet but the dog
handler had not. The agent then ordered Richard to pull over to a parking area. An agent R. Moya
then came over and told Richard to just answer the questions and that the questions are asked of
everybody (when in fact they are not) and because they were just making conversation.
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Moya asked questions about Richard being in the military and said that he was the first pilot
coming through here to refuse to answer the questions.
26. Also, on another occasion in 2008 or 2009 Richard was stopped at the border
checkpoint and refused to tell the border patrol his travel plans and that it was an invasion of
privacy. The border patrol agent then lectured Richard about respect for authority and asking
various questions and was let go after a few minutes.
27. Due to the above described acts of Defendants Richard has experienced intense
anxiety especially when driving by or through the border checkpoint as well as great fear and
anger and has lost of enjoyment of life.
COUNT ONE
Negligence and/or Gross Negligence
28. Plaintiff alleges and incorporates the preceding paragraphs as stated above.
29. Defendants owe a duty of reasonable care to Mr. Rynearson.
30. Defendants actions were negligent and/or grossly negligent, and Defendants
breached the duty of reasonable care.
31. As a direct and proximate result of said Defendants breach of their duty of care to
Mr. Rynearson as described herein, Mr. Rynearson sustained substantial injury, for which he is
entitled to redress from said Defendants.
COUNT TWO
False Arrest and Imprisonment
32. Plaintiff alleges and incorporates the preceding paragraphs as stated above.
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33. Defendants caused Mr. Rynearson to be detained, without lawful authority.
34. As a direct and proximate result of said Defendants actions, Mr. Rynearson
sustained substantial injury, for which he is entitled to redress from said Defendants.
COUNT THREE
Intentional Infliction of Emotional Distress
35. Plaintiff alleges and incorporates the preceding paragraphs as stated above.
36. The conduct of each Defendant as described herein was extreme and outrageous,
and was either intended to cause emotional distress to Mr. Rynearson, or was performed in
reckless disregard of the certainty that such distress will result from their conduct.
37. Mr. Rynearson did, in fact, sustain severe emotional distress as a result of
defendants. Due to the above described acts of Defendants Richard has experienced intense
anxiety especially when driving by or through the border checkpoint as well as great fear and
anger and has lost of enjoyment of life.
38. As a direct and proximate result of said Defendants intentional infliction of
emotional distress, Mr. Rynearson sustained substantial injury, for which he is entitled to redress
from said Defendants due to the illegal detention of Mr. Rynearson.
COUNT FOUR
28 U.S.C. 1343 and 1367
39. Plaintiff alleges and incorporates the preceding paragraphs as stated above.
40. Defendants Agent Lands and Captain Perez, by detaining Mr. Rynearson and his
vehicle without probable cause, violated Major Rynearsons rights under the Fourth, Fifth, Sixth
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and Fourteenth Amendments to the United States Constitution. Defendants Agent Lands and
Captain Perez had no reasonable suspicion or probable cause to detain and seize Richard and his
vehicle, asked questions unrelated to immigration status and detained Richard and his vehicle
way beyond the amount of time reasonable or necessary to determine immigration status. See
City of Indianapolis v. Edmond, 531 U.S. 32 (2000); United States v. Machuca-Barrera, 261
F.3d 425 (5th Cir.2001).
41. As a direct and proximate result of Defendants violation of Mr. Rynearsons
constitutional rights, Mr. Rynearson sustained damages, including, but not limited to, pecuniary
loss, mental anguish, damage to his reputation and standing in the military, and damage to his
military career, all in an amount to be proven at trial.
42. Defendants Agent Lands and Captain Perez wrongful acts were intended to cause
Mr. Rynearson injury, or were motivated by spite or ill will, or said Defendants acted to serve
their own interests, having reason to know and consciously disregarding a substantial risk that
their conduct might significantly injure the rights of Mr. Rynearson. Thus, Defendants wrongful
acts, therefore, merit an award of exemplary damages against them in their individual capacities
in an amount to be proven at trial that is sufficient to punish the individual agents, and to deter
the individual agents and others from engaging in such wrongful acts in the future.
COUNT FIVE
BivensAction-False Imprisonment/Unreasonable Search and Seizure
43. Plaintiff alleges and incorporates the preceding paragraphs as stated above.
44. Defendants falsely imprisoned Mr. Rynearson in his car as he was not free to go
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until cleared by the defendants. Because of defendants acts Mr. Rynearson suffered mental
anguish and psychological injuries, and continues to suffer mental anguish and psychological
injuries.
45. These acts also constitute an Unreasonable Search and Seizure under the Fourth
Amendment.
COUNT SIX
BivensAction-Failure to Intervene/Supervise
46. Plaintiff alleges and incorporates the preceding paragraphs as stated above.
47. Defendants falsely imprisoned Mr. Rynearson in his car as he was not free to go
until cleared by the defendants. Defendants could have intervened in each other s illegal
detention of Mr. Rynearson but failed to do so. At no time did Mr. Rynearson consent to being
held and detained. In addition Captain Raul Perez had supervisory duties over Agent Land but
failed to exercise and/or exercised those duties improperly causing Defendant to be detained
illegally, false imprisoned and suffer an Unreasonable Search and Seizure under the Fourth
Amendment.
48. Because of both defendants failure to intervene and Agent Lands failure to properly
supervise, Mr. Rynearson suffered mental anguish and psychological injuries, and continues to
suffer mental anguish and psychological injuries.
ACTING IN CONSPIRACY AND CONCERT/AGENCT RESPONDEAT SUPERIOR
49. Plaintiff alleges and incorporates the preceding paragraphs as stated above.
50. At all times defendants were acting in concert and in conspiracy and as agents of
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the United States of America. It is clear from the acts described above that Perez and Lands
knew that there was no reasonable suspicion that Richard had done anything wrong and that
Richard was being detained to do an illegal search of his vehicle for contraband in violation of
the Fourth Amendment. Perez lied that Lands had asked about immigration status at the primary
when Perez knew Lands had not asked anything about immigration status and Perez knew that
Lands was trying to do an illegal search of Richards vehicle for contraband when there was no
reasonable suspicion or probable cause to do so. The United States is also liable via respondeat
superior for defendants acts.
JURY TRIAL
51. Mr. Rynearson demands trial by jury on all issues triable to a jury.
WHEREFORE, Plaintiff Richard L. Rynearson, for each and every cause of action above,
demands the following relief, jointly and severally, against all Defendants as follows:
A. Compensatory general and special damages in an amount according to proof at
time of trial;
B. Exemplary damages, against Defendants, for the intentional acts described
above or for those done recklessly or with deliberate indifference, in an amount sufficient to deter
and to make an example of those Defendants;
C. Reasonable attorneys fees and expenses of litigation;
D. Costs of suit necessarily incurred herein;
E. Pre and post judgment interest according to proof; and
F. Such further relief as the Court deems just and proper.
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RESPECTFULLY SUBMITTED
LAW OFFICE OF RANDALL L KALLINEN PLLC
/S/ Randall L. Kallinen_______________________________________
Randall L. Kallinen
State Bar of Texas No. 00790995
U.S. Southern District of Texas Bar No.: 19417
Admitted, Fifth U.S. Circuit Court of Appeals
Admitted, U.S. Eastern District of Texas
511 Broadway Street
Houston, Texas 77012Telephone: 713/320-3785
FAX: 713/893-6737
E-mail: [email protected] for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
upon opposing counsel as indicated below by ECF on August 23, 2012.
Harold E. Brown, AUSA
601 N.W. Loop 410, Suite 600
San Antonio, Texas 78216
/s/ Randall L. Kallinen
_________________________
Randall L. Kallinen
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION
MAJOR RICHARD RYNEARSON, )
Plaintiff, ))
v. ) Civil Action No. DR-12-CA-0024-AM-CW
)
THE UNITED STATES OFAMERICA, )BORDER PATROL AGENT LANDS, )
Individually, and BORDER PATROL )
AGENT CAPTAIN RAUL PEREZ, )Individually, )
)
Defendants. )
MOTION TO DISMISS ALL CLAIMS ASSERTED AGAINST DEFENDANTS
BORER PATROL AGENT JUSTIN K. LANDS AND
SUPERVISORY BORDER PATROL AGENT RAUL PEREZ
Comes now Border Patrol Agent Justin K. Lands and Supervisory Border Patrol Agent
Raul Perez, by and through their individual counsel, the undersigned Assistant United States
Attorney, filing this motion to dismiss the conspiracy and supervisory Bivens claims against
them pursuant to Fed. R. Civ. Proc. 12(b)(6) for failure to state a claim upon which relief can be
granted, and summary judgment on the remaining claims on grounds of qualified immunity.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
The defendants in this civil action are the United States of America, United States
Customs and Border Protection,1Supervisory Border Patrol Agent Raul Perez and Border Patrol
Agent Justin Lands.2 The claims alleged in this action consist of common law torts and
Constitutional torts alleged against all defendants. The Court has substituted the United States
1Not captioned, but alleged to be a defendant in paragraph 7 of Plaintiffs Original Complaint.2 Though not listed as a party in paragraphs 3 7, Plaintiffs factual allegations mentionDefendant Chief Patrol Agent Harris ( 17). It is assumed that this is simply a typographical
error since this person is not named as a party.
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for Defendants Perez and Lands as the sole defendants on the state law tort claims. Defendants
Lands and Perez respond to the remaining constitutional tort allegations in Plaintiffs First
Amended Original Complaint as follows.
FACTS
See Fact Appendix.
ARGUMENT AND AUTHORITIES
A. The Conspiracy and Supervisory Claims Must be Dismissed for Failure to
State a Claim Upon Which Relief can be Granted.
1. The Standard of Review.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
deciding whether the complaint states a valid claim for relief, we accept all well-pleaded facts as
true and construe the complaint in the light most favorable to the plaintiff. In re Great Lakes
Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th
Cir. 2010). However, [t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.
Iqbal, 129 S.Ct. at 1949 (internal citation omitted). The Court may only consider the four
corners of Plaintiffs Original Complaint in determining whether to grant the motion. SeeGreat
Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir.2002).
Further, dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate when a
defendant attacks the complaint because it fails to state a legally cognizable claim. Ramming v.
United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom. Cloud v. United States,
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536 U.S. 960 (2002). A complaint is also subject to dismissal for failure to state a claim due to
the absence of plausible facts alleged under a cognizable legal theory. In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007), cert. denied sub nom. Xavier Univ. of
Louisiana v. Travelers Cas. Prop. Co. of America, 552 U.S. 1182 (2008) (To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is
plausible on its face.) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).
A claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Montoya v. FedEx
Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 129
S.Ct. 1937, 1940 (2009). Dismissal is appropriate when the plaintiff fails to allege enough
facts to state a claim to relief that is plausible on its face,and therefore fails to raise a right to
relief above the speculative level. Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at
555, 570.
2. Plaintiffs allegations must be evaluated solely under the Fourth
Amendment.
The Fourth Amendment is the sole basis for Plaintiffs claims; the remaining alleged
constitutional bases for this action under the Fifth, Sixth and Fourteenth Amendments are
frivolous. The Fifth Amendment does not apply because it is settled law that the Fourth
Amendment provides an explicit textual source of constitutional protection against
unreasonable seizures by federal agents, and therefore the Fourth Amendment, not the Fifth
Amendment and its more generalized notion of substantive due process, must be the guide for
analyzing these claims. See Cnty of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting
Albright v. Oliver, 510 U.S. 266, 273 (1994)). The Sixth Amendment is obviously inapplicable
since it clearly applies to domestic criminal proceedings. See United States v. Balsys, 524 U.S.
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666, 672 (1998). An immigration inspection is not a criminal proceeding. It is beyond obvious
that the Fourteenth Amendment is inapplicable because it applies only to state, not federal,
action. SeeMcGuire v. Turnbo, 137 F.3d 321, 323 (5th
Cir. 1998) (dismissing 14th
Amendment
claim against federal employees acting under color of federal law).3
3. Plaintiff Fails To State a Bivens Claim for Conspiracy
Plaintiffs who allege conspiracies to violate constitutional rights must plead the specific
operative facts demonstrating a plausible basis for concluding that a conspiracy existed. Bald
allegations that a conspiracy existed are insufficient. Lynch v. Cannatella, 810 F.2d 1363,
1369-70 (5th Cir.1987). See also McAfee v. Fifth Circuit Judges, 884 F.2d 221, 222 (5th
Cir.1989), cert. denied 493 U.S. 1083 (1990) (conclusory allegations which lack reference to
material facts are not sufficient to state a claim of conspiracy under Section 1983 orBivens).
Plaintiffs allegations are nothing more than a conclusory statement of his conspiracy
claim. Paragraph 50 contains a single, conclusory statement: At all times defendants were
acting in concert and in conspiracy and as agents of the United States of America. Plaintiff
does not allege facts anywhere in the First Amended Complaint that Defendants Lands and Perez
agreed to undertake action to violate his Fourth Amendment rights, an essential element of the
conspiracy. See Holdiness v. Stroud, 808 F.2d 417, 425 (5th
Cir. 1987) (The essence of
conspiracy is an understanding or agreement between the conspirators). He makes conclusory
allegations of motive by Agent Lands in paragraphs 8, 9, 11, and 21. He makes the same
conclusory allegations against Agent Perez in paragraphs 12, 13, 14, and 15. Plaintiff does not
3Plaintiffs allegation that the 14
thAmendment applies is specious. Plaintiff specifically alleges
that the defendants were acting as agents of the federal government (First Amended Original
Complaint, 50).
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allege any specific operative facts supporting his claim of conspiracy in this paragraph or
elsewhere in the complaint. He alleges that on other occasions he was improperly detained at the
checkpoint, but he does not allege that Defendants Lands and Perez were involved in those
detentions. Accordingly, this claim must be dismissed for failure to state a claim upon which
relief can be granted.
4. Plaintiff Fails to State a Bivens Claim for Supervisory Liability
The Supreme Court squarely addressed supervisory liability in Ashcraft v. Iqbal,
finding that supervisory liability is inconsistent with his accurate stipulation that petitioners may
not be held accountable for the misdeeds of their agents. A federal official is entitled to qualified
immunity if there is no personal involvement in the alleged constitutional violation. See Ashcroft
v. Iqbal, 556 U.S. 662, 677 (2009) (a government official is only liable for his or her own
misconduct);Mouille v. City of Live Oak, Tex.,977 F.2d 924, 929 (5th
Cir. 1992), cert. denied
sub nom. Liberda v. City of Live Oak, Tex., 508 U.S. 951 (1993) (supervisory officials cannot
be held vicariously liable for their subordinates actions). Thus, Plaintiff must show that each
Government-official defendant, through the officials own individual actions, has violated the
Constitution. Iqbal, 556 U.S. at 676 (emphasis added). In a 1983 suit or a Bivens action
where masters do not answer for the torts of their servantsthe term supervisory liability is a
misnomer. Id., at 662. [E]ach Government official, his or her title notwithstanding, is liable
only for his or her own misconduct. Id. To state a claim against Defendants, Plaintiff must
show that they were either personally involved in the constitutional violation or engaged in
acts that were causally connected to the constitutional violation alleged. Woods v. Edwards,
51 F.3d 577, 583 (5th
Cir. 1995). Personal involvement is an esse ntial element of a civil rights
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cause of action. Thompson v. Steele, 709 F.2d 381, 382 (5th
Cir. 1983), cert. denied464 U.S.
897 (1983).
Plaintiffs supervisory claims against Defendant Perez fail because he does not plead any
operative facts raising personal involvement of Supervisory Agent Perez prior to his arrival on
the scene. Aside from the conclusory statements in 12, 13, and 15 Plaintiff pleads no operative
facts sufficient to plead a claim of liabilityplausible or not--based on Perezs supervision of
Lands. There are no facts demonstrating how Defendant Perez personally failed to supervise
Defendant Lands. Therefore the claim must be dismissed for failure to state a claim upon which
relief may be granted.
B. The Defendants are Entitled to Dismissal of the Claims or Summary Judgment
on All Fourth Amendment Claims Because They Are Entitled To Qualified
Immunity
1. Facts
See Fact Appendix. The following facts are not in dispute:
The Uvalde checkpoint is a fixed immigration checkpoint located on United States
Highway 90 in Uvalde County, Texas about 67 miles from the border with Mexico. The
checkpoint has as one of its primary missions the detection of persons illegally in this country.
The means of accomplishing this mission is to conduct immigration inspections of motorists who
are travelling east on Highway 90.
The events the Plaintiff contends gave rise to his claims occurred on March 18, 2010 at
the Uvalde checkpoint.
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The Defendants are Border Patrol Agent Justin K. Lands and Supervisory Border Patrol
Agent Raul Perez. They were on duty and performing their assigned duties at all times during
the incident Plaintiff contends gave rise to his claims.
Exhibit D is a video posted by the Plaintiff on the Internet which depicts most of the
events of March 18, 2010.
2. The Standard of Review.
It is well-settled that government officials performing discretionary functions are
entitled to qualified immunity from liability for civil damages so long as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where the defendant seeks
qualified immunity, a ruling on that issue should be made early in the proceedings so that the
costs and expenses of trial are avoided where the defense is dispositive. Saucier v. Katz, 533
U.S. 194, 200 (2001). [Q]ualified immunity constitutes an immunity from suit rather than a
mere defense to liability. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th
Cir. 2002)
(en banc), cert. denied537 U.S. 1232 (2003) (emphasis in original) (quoting Mitchell v. Forsyth,
472 U.S. 224, 227 (1985). Qualified immunity is an entitlement not to stand trial or face the
other burdens of litigation. Id. (quoting Mitchell v. Forsyth, 472 U.S. at 526). Although
qualified immunity is an affirmative defense that must be pleaded by a defendant official,
Harlow, 457 U.S. at 815, [t]he plaintiff bears the burden of proving that a government official
is not entitled to qualified immunity.4 Michalik, 422 F.3d 252, 258 (2005) (emphasis added).
Qualified immunity is intended to give government officials a right not merely to avoid
4Cases interpreting immunity defenses in actions under 42 U.S.C. 1983 are equally applicable
to Bivens cases filed against federal officials. Butz v. Economou, 438 U.S. 478, 504 (1978).
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standing trial, but also to avoid the burdens of such pretrial matters as discovery. McClendon
v. City ofColumbia, 305 F.3d at 323 (emphasis added; citation omitted. Thus, adjudication of
qualified immunity claims should occur at the earliest possible stage in litigation. Id. (quoting
Hunter v. Bryant, 502 U.S. 224, 227 (1991)).5
To establish an entitlement to qualified immunity, a government official must first show
that the conduct occurred while he was acting in his official capacity and within the scope of his
discretionary authority. Cronen v. Tex. Dep't of Human Servs., 977 F.2d 934, 939 (5th Cir.1992).
Once a defendant has properly invoked qualified immunity, the burden rests on the plaintiff to
show that the defense does not apply. McClendon v. City of Columbia, 305 F.3d at 323.
After a federal officer demonstrates an entitlement to raise qualified immunity, the Court
evaluates the defense by engaging in two inquiries. Sanchez v. Fraley, 376 Fed. Appx. 449, 450
(5th
Cir. 2010). First, the court determines whether the facts alleged, taken in the light most
favorable to the party asserting the injury, show that the defendant's conduct violated a
constitutional right.Id., (quoting Saucier v. Katz,533 U.S. 194, 201 (2001), overruled in part by
Pearson v. Callahan, 555 U.S. 223, (2009)). Next the court determines whether the right
violated was clearly established at the time. Id. While it is often appropriate to answer
these two questions sequentially, courts are vested with sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first. Id. (quoting
Pearson, 129 S.Ct. at 818).
5 A defendant claiming qualified immunity is entitled to have that issue resolved prior to the
commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526-527 (1985); Vander Zee v.
Reno, 73 F.3d 1365, 1368-1369 (5th
Cir. 1996). Orders denying motions to dismiss or motions
for summary judgment asserting official immunity defenses are immediately appealable as finaljudgments under 28 U.S.C. 1291. Martin v. Memorial Hospital at Gulfport, 86 F.3d 1391,
1394-1397 (5th
Cir. 1996);Mitchell v. Forsyth, 472 U.S. at 530.
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The Court must make two overlapping objective reasonableness inquiries. Lytle v.
Bexar County, Tex.,560 F.3d 404, 410 (5th Cir.2009) (alteration omitted) (quoting Saucier, 533
U.S. at 210), cert. denied, --- U.S. ----, (2010).
We must first answer the constitutional violation question by
determining whether the officer[s'] conduct met the FourthAmendment's reasonableness requirement.... If we find that the
officer[s'] conduct was not reasonable under the Fourth
Amendment, we must then answer the qualified immunity questionby determining whether the law was sufficiently clear that a
reasonable officer would have known that his conduct violated the
constitution. In other words, at this second step, we must ask thesomewhat convoluted question of whether the law lacked such
clarity that it would be reasonable for an officer to erroneously
believe that his conduct was reasonable. Despite any seemingsimilarity between these two questions, they are distinct inquiriesunder Saucier, and we must conduct them both.
Id.
As with any summary judgment motion, while the Court must construe the evidence in
the light most favorable to the nonmoving party, [u]nsubstantiated assertions, improbable
inferences, and unsupported speculation, are not sufficient to defeat a motion for summary
judgment. Winfrey v. San Jacinto County, 2012 WL 3062159, *3 n5 (5thCir. 2012) (quoting
Brown v. City of Houston, 337 F.3d 539, 541 (5th
Cir. 2003).
As demonstrated below, Defendant Lands and Perezs actions met the Fourth
Amendment reasonableness standard, and therefore they are entitled to summary judgment.
3. Defendants Are Entitled to Summary Judgment on Qualified Immunity.
a.
Defendants Properly Raise Qualified Immunity.
The Plaintiff pleads that Defendants Lands and Perez were federal officers acting in
scope of their duties (First Amended Complaint, 50), and the defendants assert this as well in
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their declarations. Thus, the defendants are entitled to the protection of the defense of qualified
immunity.
b. The Plaintiffs Version of Events Must be Evaluated with
Reference to His Videotape.
The Court should measure the Plaintiffs version of events against the video he created
and posted on the Internet. When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
Scott v. Harris, 550 U.S. 372, 380 (2007). Accordingly, a court should reject a plaintiff's
description of the facts where the record discredits that description but should instead consider
the facts in the light depicted by the videotape. Carnaby v. City of Houston, 636 F.3d 183,
187 (5th Cir.2011) (quoting Scott, 550 U.S. at 381).
Exhibit D is a videotape of the events of March 18, 2010 posted by the Plaintiff on the
Internet. While there appears to be some editing of the video, it demonstrates that the Plaintiff
set out to bait the agents and make it as difficult as possible to conduct an immigration
inspection. The video also reveals that the Plaintiff believed, erroneously, that he could be
directed to secondary only if something other than a routine immigration inspection was to be
conducted. The video supports the Defendants version of events, and contradicts the Plaintiffs
story that he was cooperative, provided his documents and that it was the agents who prolonged
the immigration inspection. In fact, the Plaintiff was evasive, diverted Agent Lands from his
inspection by arguing with him, refusing to roll down his window, and acting in a highly
discourteous fashion. This activity continued with Supervisory Agent Perez. The video
demonstrates that Plaintiffs actions prolonged the time it took to complete the inspection.
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4. Defendants did not Violate Plaintiffs Fourth Amendment Rights.
In assessing a qualified immunity defense, a Court must first determine whether the
plaintiff has alleged a violation of a clearly established constitutional or statutory right.
Michalik v. Hermann, 422 F.3d at 257-258. A right is clearly established if its contours are
sufficiently clear that a reasonable official would understand that what he is doing violates that
right. Id. at 258 (citation omitted). If the allegations do not establish the violation of a
constitutional right, the officer is entitled to qualified immunity. Price v. Roark, 256 F.3d 364,
369 (5th
Cir. 2001).
5.
Defendant Lands Conduct Met the Fourth Amendment Standard.
Plaintiff had a right to have the immigration inspection at the Uvalde checkpoint
conducted promptly. Plaintiff had no right to set the parameters of that inspection. It is settled
law that (1) a motorist such as the Plaintiff could be detained at a permanent immigration
checkpoint like the one on Highway 90 in Uvalde County for the purposes of an immigration
check; (2) the immigration check can occur either at the initial point of encounter or at a
secondary inspection site; and (3) a Border Patrol Agent may ask whatever questions he chooses
in conducting the check so long as the stop is of a duration expected for an immigration stop; and
(4) that any extension of the length of detention due to the wrongful conduct of the Plaintiff
cannot result in Fourth Amendment violation.
a. The Detention at the Checkpoint was Permissible Under the
Fourth Amendment
Plaintiff does not challenge the initial detention by Agent Lands at the primary
checkpoint to inquire into his immigration status, as indeed he cannot since the initial detention
was conducted at a fixed immigration checkpoint.
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The purpose of an immigration checkpoint is to verify the
immigration and naturalization status of the passengers in the
vehicles passing through the checkpoint. The Supreme Court hasheld that this purpose is constitutionally sufficient to support
stopping all vehicles which pass through the checkpoint, even in
the absence of any individualized reasonable suspicion or probablecause that a particular vehicle contains illegal immigrants.
United States v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir.), cert. denied539 U.S. 910 (2003)
(citing United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976). This is because stops for
brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth
Amendment. United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976). Thus, Agent Lands
brief detention of Plaintiff at the primary checkpoint did not violate the Fourth Amendment.
b. The Referral To Secondary Inspection Did not Violate the
Fourth Amendment
Plaintiff contends that Agent Lands had no legal reason to refer him to secondary
inspection (Complaint, 9), apparently believing that the immigration inspection could not be
conducted at the secondary inspection point, and that he could not be detained there by Agent
Lands unless Agent Lands had reasonable suspicion that Plaintiff was engaged in criminal
activity. His pleadings allege that Agent Lands could not refer him to secondary inspection
unless Agent Lands had reasonable suspicion of criminal activity by Plaintiff or probable cause
to arrest the Plaintiff. Exhibit D demonstrates that Plaintiff objected to the stop and argued with
Agent Lands that he could not be detained without reasonable suspicion of criminal activity.
Agent Lands explains in his declaration that the checkpoint was busy and that a semitractor
trailer was pulling in behind Mr. Rynearson, so he referred Mr. Rynearson to secondary. Mr.
Rynearsons video corroborates Agent Lands version of these events and contains no evidence
that Agent Lands conducted, much less completed, his inspection at the primary checkpoint. It is
settled law that a referral to secondary inspection to conduct a slightly longer immigration
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(5th Cir.2001)). This includes the time necessary to ascertain the number and identity of the
occupants of the vehicle, inquire about citizenship status, request identification or other proof of
citizenship, and request consent to extend the detention. United States v. Machuca-Barrera,
261 F.3d at 433. While the duration of an immigration checkpoint detention should be brief, it is
settled law that the length of any detention must be evaluated under the Fourth Amendment
using common sense and ordinary human experience. See United States v. Sharpe, 470 U.S.
675, 685 (1985). This includes determining whether the detention was extended as a result of the
refusal of the person detained to cooperate with the inspection. Cf. United States v. Sharpe, 470
U.S. at 485.
Exhibit D demonstrates that even before the Plaintiff reached the secondary inspection
point, he had made up his mind that he would not cooperate with Agent Lands inspection, as
evidenced by the fact that he rolled up his window as he pulled into the secondary inspection
point. From that point forward, the Plaintiff challenged Agent Lands authority to detain him at
the secondary inspection point, and refused to cooperate with Agent Lands request to roll down
his window or exit the vehicle to speak with him. Plaintiff made a telephone call while Agent
Lands was speaking with him, and refused to cooperate with questioning. In what appears to be
an attempt to intimidate Agent Lands, Plaintiff lied to Agent Lands and told him the FBI advised
him that he could be detained only on reasonable suspicion. Plaintiff insisted, mistakenly, that
Agent Lands could not conduct his immigration inspection at secondary inspection unless he had
reasonable suspicion that the Plaintiff was engaged in criminal activity. Exhibit D also reveals
that Plaintiff believed that he could insist that Agent Lands explain the reasons for his detention
to his satisfaction before the inspection could proceed. Thus, Agent Lands immigration
inspection was thwarted by Plaintiffs actions in rolling up his window, refusing to roll it down
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until Agent Lands explained the reason for the referral to secondary. Plaintiff persisted in this
conduct after Agent Lands explained repeatedly that the Plaintiff was detained for an
immigration inspection, that Lands did not need reasonable suspicion to conduct that inspection,
and repeatedly requested that the Plaintiff roll down his window so he could speak with him and
examine his documents. All of these actions by the Plaintiff prolonged the inspection, which
continued as long as the Plaintiff chose not to cooperate with Agent Lands.
When it became obvious that Plaintiff would not cooperate with the inspection, Agent
Lands took the reasonable step of writing down the information from Plaintiffs identification
cards and checking that information against electronic databases, and to summon a supervisor to
deal with Mr. Rynearson. Thus, Agent Lands did not violate the Fourth Amendment by
prolonging the duration of the inspection because it was Plaintiffs actions, not Agent Lands
actions, that prolonged the inspection. Cf. United States v. Sharpe, 470 U.S. at 485.
Plaintiffs assertions in his complaint need not be accepted by the Court to the extent they
are contradicted by the video. The video demonstrates that contrary to Plaintiffs assertions, he
was in fact evasive by arguing with Agent Lands, accusing Agent Lands of lying about whether
he could hear the Plaintiff (while Lands was standing outside the vehicle in the noisy
environment under the inspection point canopy), and refusing to roll down his window. Plaintiff
did not provide his drivers license or military ID to Agent Landshe simply stuck them in
the window and refused to roll down his window and hand them to Agent Lands. He resisted
answering questions be insisting that he would cooperate only after the Agent explained the
reasons for the stop to his satisfaction.
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6. Defendant Perezs Actions Were Objectively Reasonable.
Plaintiff does not allege that Supervisory Agent Perez was in any way involved in the
prior to his arrival on the scene. He contends that Supervisory Agent Perez acted unreasonably
by asking him for the name of his commanding officer, and taking 15 additional minutes to call
Laughlin Air Force Base to confirm his identity. He claims these and other actions were
pretextual, but the appropriate standard is whether these actions were objectively reasonable.
The video demonstrates that Supervisory Agent Perez was courteous to Mr. Rynearson.
He simply asked him his commanding officers name. Mr. Rynearson refused to provide it, but
acknowledged that Supervisory Agent Perez could obtain that information himself by calling
Laughlin Air Force Base. Agent Perez explains in his declaration that it took him several
minutes to reach the checkpoint after he was summoned, and that after speaking with Mr.
Rynearson and examining his documents, he decided to release him. Plaintiffs actions
demonstrated that extra care should be taken in ascertaining that his documents were genuine and
he was in the United States lawfully. The agents are conducting an inspection in which they
ascertain the identity of the person they are inspecting, and whether they are lawfully in this
country.
7. Plaintiffs are Entitled to Summary Judgment on the Conspiracy and
Supervisory Torts.
The Defendants are entitled to summary judgment on the conspiracy and supervisory
torts because their actions during the immigration inspection were objectively reasonable. They
have also denied the existence of any conspiracy. The conspiracy and supervisory torts are
simply a means of interjecting a subjective component into what must be an objective review of
their conduct.
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The length of the detention was caused solely by Plaintiffs misguided belief that a
referral to secondary inspection required reasonable suspicion of criminal activity, and his
inappropriate insistence on an explanation from Agent Lands before he would answer questions
or provide his documents for inspection. Agent Lands reactioncalling his supervisor to take
overoccurred after he explained the reasons for the detention to Plaintiff, who refused to
accept these explanations and continued to thwart the inspection.
WHEREFORE, premises considered, the Court should DISMISS all claims asserted
against the United States in this action, and dismiss the United States from this action since no
claims remain against the United States. A proposed order is submitted with this motion.
Respectfully Submitted,
ROBERT PITMANUNITED STATES ATTORNEY
BY: /s/Harold E. Brown Jr.
HAROLD E. BROWN, JR.
Assistant United States Attorney
Oklahoma Bar No. 001192601 N.W. Loop 4l0, Suite 600San Antonio, Texas 78216
(210) 384-7320
(210) 384-7322 [email protected]
mailto:[email protected]:[email protected]:[email protected] -
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CERTIFICATE OF SERVICE
I hereby certify that on September 24, 2012, I electronically filed the foregoing documentwith the Clerk of Court using the CM/ECF system which will send notification of such filing to
the following:
Randall L. Kallinen
Attorney at Law
511 Broadway St.Houston, Texas 77012
In addition, Defendant is also sending the foregoing document with exhibits via CMRRRto Plaintiffs counsel.
/s/ Harold E. Brown Jr.___
HAROLD E. BROWN, JR.
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION
MAJOR RICHARD RYNEARSON, )
Plaintiff, ))
v. ) Civil Action No. DR-12-CA-0024-AM-CW
)
THE UNITED STATES OFAMERICA, )BORDER PATROL AGENT LANDS, )
Individually, and BORDER PATROL )
AGENT CAPTAIN RAUL PEREZ, )Individually, )
)
Defendants. )
FACT APPENDIX
This fact appendix is provided pursuant to Local Rule CV-7(d)(1). References are to the
Exhibits filed with the Motion to Dismiss.
A. The Defendants.
Border Patrol Agent Justin K. Lands has been employed as a United States Border Patrol
Agent since October 13, 2008. On March 18, 2010, Agent Lands was on duty as a Border Patrol
Agent at the Uvalde Checkpoint on Highway 90 near Uvalde, Texas (Exhibit A, page 1).
Supervisory Border Patrol Agent Raul Perez has been employed as a Border Patrol Agent
since July 27, 1987. He was worked at the Uvalde station since December 15, 1987. He was
promoted to Supervisory Border Patrol Agent in December 2004 (Exhibit B, page 1). On March
18, 2010, Supervisory Border Patrol Agent Perez was on duty and performing supervisory duties
(Exhibit B, page 1).
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B. The Uvalde Checkpoint.
The incident that gave rise to the claims filed in this action occurred at the Uvalde Border
Patrol checkpoint. This is a fixed checkpoint located on Highway 90 in Uvalde, Texas (Exhibit
A, page 1). An aerial photograph of the checkpoint is at Exhibit C, and Exhibit D depicts
portions of the checkpoint located under the canopy seen in Exhibit C.
The checkpoint is a fixed location at which immigration inspections are conducted by the
United States Border Patrol 24 hours a day, seven days a week (Exhibit A, page 2). The
checkpoint is located about 67 surface miles from the border with Mexico on Highway 90
(Exhibit A, page 2). The checkpoint is part of a multi-layered border security strategy aimed in
part at curtailing illegal immigration by capturing persons illegally in this country (Exhibit A,
page 2).
Persons travelling toward San Antonio on Highway 90 are directed off the highway and
into the checkpoint area, where the immigration inspection occurs (Exhibit A, page 2).
C.
Agent Lands Actions on March 10, 2010.
Agent Lands was in uniform and stationed at the Uvalde Checkpoint as Mr. Rynearson
approached the primary inspection point (Exhibit A, page 2). As Mr. Rynearson pulled into
primary inspection, he greeted Mr. Rynearson, walked around the vehicle to inspect the interior,
and asked if this was Rynearsons vehicle (Exhibit A, page 3; Exhibit D, 00:00:26). Agent
Lands then asked if Mr. Rynearson could roll down your window and Rynearson rolled down
the window a little more (Exhibit D, 00:00:29). Agent Lands asked if the window could Mr.
Rynearson responded that it it can go down more (Exhibit D, 00:00:31). Agent Lands decided
to conduct his immigration inspection at the secondary inspection area since he was having
trouble hearing Agent Lands due to a combination of factors, including the need to get other
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agents to conduct the inspection of the vehicles arriving at the checkpoint, Rynearsons failure to
roll down his window all the way, and the noise from a tractor-trailer right behind Rynearsons
vehicle (Exhibit A, page 3; Exhibit D, 00:00:25-48 (showing the tractor pulling in behind
Rynearsons vehicle). Agent Lands explained to Mr. Rynearson that he was being diverted to
secondary because of all the traffic (Exhibit D, 00:00:42-48). Mr. Rynearson complied and
drove his vehicle to the secondary inspection point, rolling up his window when he arrived there
(Exhibit D, 00:00:44-1:03).
Agent Lands arrived at Mr. Rynearsons vehicle less than 30 seconds later (Exhibit D,
01:32). At first Agent Lands requested that Mr. Rynearson he refused to roll down his window
or exit the vehicle. For the next several minutes Mr. Rynearson refused to roll down his window
and instead yelled at the agent through the window asking him whether and whether or why he is
being detained. Agent Lands explained to Mr. Rynearson that he was conducting an immigration
inspection that Mr. Rynearson was evading his questions and that he needed to roll down his
window so they could speak to one another. Mr. Rynearson refused all these efforts (Exhibit D,
1:32-5:08). Agent Lands was never given the opportunity to question Mr. Rynearson or examine
his documents because Mr. Rynearson demanded that Agent Lands answer his questions, and
would not roll down his window so a normal conversation and the documents could be examined
(Exhibit D, page 4).
Mr. Rynearson apparently believed that Agent Lands required reasonable suspicion or
probable cause in order to refer him to secondary inspection. He appears to have called the FBI,
spoken with a duty agent, and claimed that the Agents were threatening him, and that they could
not detain him at secondary inspection without reasonable suspicion (Exhibit D, part 1, 6:48-
9:52). When the agent advised him that he should cooperate with the Border Patrol agents,
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Rynearson replied so youre telling me I have to give up my Fourth Amendment Rights?
(Exhibit D, part 1, 9:00-9:52).
Mr. Rynearson then called Agent Lands over to the vehicle and advised him that the FBI
in San Antonio told him that he could not be detained without reasonable suspicion. He then
insisted that Agent Lands tell him why he was being detained, and what reasonable suspicion
Agent Lands had which justified the detention. Agent Lands explained that this was an
immigration inspection and that he did not need reasonable suspicion to put him in secondary
inspection. He also stated that he did not have to explain to Mr. Rynearson why he was referred
to secondary. Agent Lands terminated the conversation, telling Mr. Rynearson that he had
summoned a supervisor and that the supervisor would discuss the situation with Rynearson
(Exhibit D, part 2, 0:00-3:03). Agent Perez arrived about four and one-half minutes later
(Exhibit D, part 2, 07:30).
Agent Lands understood that an immigration inspection could be held at the primary
inspection point or the secondary inspection point (Exhibit A, page 3). He was also aware that
the detention was for the sole purpose of determining whether Mr. Rynearson was lawfully in the
United States, and that the inquiry should normally confined to a visual inspection of the interior
of the vehicle, a few questions concerning citizenship and a physical examination of documents
(Exhibit A, page 3). At times the inspection can be expanded when a person such as Mr.
Rynearson is evasive and gives the Agent inspecting the person reason to inquire further into his
status, but this normally takes the form of running additional checks on the drivers license and
passports presented by the person being inspected (Exhibit A, page 4). Mr. Rynearson chose to
be confrontational and noncooperative, and therefore his inspection took longer because of this
behavior (Exhibit A, page 6). When Mr. Rynearson continued to refuse to cooperate with the
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inspection, Agent Lands decided to call a supervisor to complete the inspection (Exhibit A, page
5).
D. Supervisory Border Patrol Agent Perezs Actions on March 10, 2010
Agent Perez was on patrol duty and was seven miles away from the Uvalde Checkpoint
when he received a radio call from another supervisor that he was needed at the checkpoint to
deal with the situation created by Mr. Rynearson (Exhibit B, page 2). Prior to the radio call, he
was unaware of the situation with Mr. Rynearson (Exhibit B, page 2). Agent Perez drove by the
most direct route from his location to the checkpoint, and arrived after 10 to 15 minutes (Exhibit
B, page 2). He arrived at the checkpoint and as briefed by the other supervisor and Agent Lands
(Exhibit B, page 2). Agent Perez assumed responsibility for the situation and decided to deal
directly with Mr. Rynearson (Exhibit B, page 2).
Agent Perez then walked to Plaintiffs vehicle (Exhibit B, page 2; Exhibit D, part 2,
07:32). As Agent Perez approached Mr. Rynearsons vehicle he noticed that Mr. Rynearson had
passports stuck on the inside of his window (Exhibit B, page 2). After tapping on the drivers
side window, Mr. Perez asked Mr. Rynearson to roll down his window so he could look at the
passports (Exhibit D, part 2, 07:37). Agent Perez advised Mr. Rynearson that he would check
out the passports and if they were OK he would send him on his way (Exhibit D, part 2,
00:08:38). He asked Mr. Rynearson if he was in the military, and Rynearson advised him that he
was (Exhibit D, part 2, 08:52). Rynearson refused to provide the name of his commanding
officer, which Agent Perez had requested in order to verify his military identity (Exhibit B, page
2; Exhibit D, part 2, 08:58). Mr. Rynearson challenged Agent Perez, and accused him of
interfering with his military employment (Exhibit D, part 2, 09:11). Agent Perez replied that he
was doing his job (Exhibit D, part 2, 09:20-30).
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Agent Perez proceeded to the checkpoint and called dispatch to run a record checks on
the passports and other records on Mr. Rynearson (Exhibit B, page 3). While these checks were
being run, Agent Perez, who had received specialized training in the past in document
examination, examined the passports and determined that they appeared genuine and unaltered
(Exhibit B, page 3). This was confirmed by dispatch records check (Exhibit B, page 3). At that
time, Agent Perez determined that Mr. Rynearson was a United States citizen, with no other
reason to hold him, and he directed Agent Lands to release Mr. Rynearson (Exhibit B, page 3).
The videos on Exhibit D indicate that it took approximately 15 minutes for Agent Perez
to complete the immigration inspection of Mr. Rynearson. This consists of the time Agent Perez
spoke with Mr. Rynearson at his vehicle until Mr. Rynearson was released by Agent Lands
(Exhibit D, part 2, 7:35 to Exhibit D, part 4, 5:03). Defendant Perez called Laughlin AFB to
confirm Rynearsons status. This confirmation process took approximately ten to fifteen minutes.
(Exhibit F, page 2).
The total time for the inspection was approximately 30 minutes.
The video evidence at Exhibit D demonstrates that the Plaintiff intended to challenge and
refuse to comply with the immigration inspection that Agent Lands and Supervisory Agent Perez
conducted on March 18, 2012. An immigration inspection includes identification of the person
being inspected as well as a determination of that persons immigration status (Lands
Declaration, Exhibit E, page 2). Plaintiff rolled up his window before he pulled into the
secondary inspection point (Exhibit D, Part 1, 00:00:55). In addition to refusing to roll down his
window in response to Agent Lands request, he spoke in a challenging, discourteous tone,
yelling at Agent Lands (Exhibit D, Part 1, 00:01:40 to 00:05:10). During this period Plaintiff
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7
decided to make a telephone call and simultaneously argue with Agent Lands rather than answer
Agent Lands questions (Exhibit D, Part 1, 00:02:33 to 00:04:05). His demeanor appeared
calculated to provoke Agent Lands, who chose to break off the exchange and summon a
supervisor to deal with Plaintiff.
Several minutes later the Plaintiff appears to have called the FBI and explained to them
that he was being detained at the Uvalde checkpoint (Exhibit D, Part 1, 00:06:47). He explains
to someone that he was directed to secondary without explanation, that he refused to exit his
vehicle or roll down his window, and that he was filming the encounter (Exhibit D, Part 1,
00:06:47 to 00:08:49). He falsely informed the person on the telephone that he was being
threatened by the Agents (Exhibit D, Part 1, 00:08:25 to 00:08:40). He also states repeatedly that
he believed that he could not be detained at secondary without reasonable suspicion and
whomever he was speaking to apparently advised him to comply with the Border Patrol Agents
instructions, (Exhibit D, Part 1,00:08:40 to 00:09:30).
Plaintiff then called Agent Lands over to the vehicle and lies to him, stating that he called
an FBI agent who informed him that he could not be held without reasonable suspicion (Exhibit
D, Part 2, 00:00:00 to 00:00:41). Plaintiff then engages in a verbal exchange with Agent Lands
in which he insists that he cannot be held without reasonable suspicion, that he can hear the agent
and insinuates that Agent Lands can hear him, and that he wants an explanation of the reasons
for his detention (Exhibit D, Part 2, 00:00:41 to 00:03:00). During this exchange Agent Lands
explains that he cannot hear the Plaintiff well, that he was being held at secondary because he
was being evasive and refusing the answer questions. Agent Lands informed Plaintiff that a
supervisor was on the way to deal with the situation (Exhibit D, Part 2, 00:03:00 to 00:03:04).
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March 18, 2010 was the only occasion that Agent Lands and Supervisory Agent Perez
had any interaction with the Plaintiff. At the time of the events on March 18, 2010, they had
never heard of Mr. Rynearson. (Exhibit E, page 4 and Exhibit F, page 3).
Exhibit D also demonstrates that Plaintiff did not provide his military ID and drivers
license to Agent Lands. Displaying these documents on the inside of a car window hardly
qualifies as supplying it or making it available to Agent Lands. Agent Lands pointed this out
when he stated that he could not examine the documents without them being handed to him.
(Exhibit E, page 1).
Defendants Perez and Lands had no intent to conduct a search of Plaintiff or his vehicle.
They have no practice or procedure in which they conduct an immigration inspection in a
manner that will coerce or encourage a person being inspected to consent to a search of a person
or vehicle. They deny that there has ever been such a practice or procedure in place at the
Uvalde checkpoint. Both defendants have taken oaths to enforce the law and protect the people
of the United States, and conduct themselves in a manner that will achieve these goals by
following the law. (Exhibit E, page 2-3, and Exhibit F, page 2-3).
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Respectfully Submitted,
ROBERT PITMAN
UNITED STATES ATTORNEY
BY: /s/Harold E. Brown Jr.
HAROLD E. BROWN, JR.
Assistant United States AttorneyOklahoma Bar No. 001192
601 N.W. Loop 4l0, Suite 600
San Antonio, Texas 78216(210) 384-7320
(210) 384-7322 Fax
CERTIFICATE OF SERVICE
I hereby certify that on September 24, 2012, I electronically filed the foregoing documentwith the Clerk of Court using the CM/ECF system which will send notification of such filing to
the following:
Randall L. Kallinen
Attorney at Law511 Broadway St.
Houston, Texas 77012
/s/ Harold E. Brown Jr.___
HAROLD E. BROWN, JR.
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window on his vehicle was rolled almost all the way up. As he pulled past me, I walked from
behind
his vehicle and asked him if the vehicle was his and
ifhe would
roll down his window.
He rolled it down a
half
an inch or so more, and then I directed him to proceed to the secondary
inspection area, which was located perhaps 150 feet away, and advised him that I would be with
him
in
a moment. I directed him to secondary inspection because there was a tractor-trailer right
behind
Mr. Rynearson, and I needed to get help to check all the other vehicles including Mr.
Rynearson s. I was also having trouble hearing him since his window was not rolled down all
the way, and the truck was making a lot of noise since it was located less than 20 feet away and
had
its engine running.
I have received specific training in conducting checkpoint immigration inspections of the
sort that I attempted to conduct with Mr. Rynearson. I am aware that detention at the checkpoint
is,
in
the absence of some more specific reasons for the detention, solely for the purpose of
determining whether the person or persons in the vehicle are lawfully in the United States, and
that the detention should be brief. Mr. Rynearson s detention was solely for the purpose of
conducting an immigration inspection. I
am
also aware that an immigration inspection of Mr.
Rynearson
can
consist only of a visual inspection of the interior of the vehicle to determine who
is in the vehicle, a few questions aimed at determining whether the person(s) detained are
lawfully in the United States, and an inspection of identification and immigration documents
(such as a passport, permanent resident card, or border crossing card). I was also aware that an
immigration inspection may
be
made at
the point
where I stopped Mr.
Rynearson s
vehicle, or
at
the secondary inspection location.
At
the Uvalde checkpoint, the secondary inspection area
on
March 18,
2010
was a parking area approximately 25 yards from the point where I initially
encountered Mr. Rynearson. No reasonable suspicion is necessary to direct a person to the
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secondary area for an immigration inspection. Finally, immigration inspections are made
without reasonable suspicion of
criminal activity
by
the person being detained at the checkpoint.
f
a Border Patrol Agent such as myself becomes aware of facts that create a suspicion of
criminal activity, then the person can be detained for further questioning.
Normally,
if
the person being detained is cooperative, an immigration inspection
conducted either at secondary requires only 2-5 minutes. I normally run immigration records
through our sector radio
room
which could also include a want/warrants check. This process
could take a couple ofminutes.
f
no K-9 alert, we confirm immigration status and then release
the individual.
Mr. Rynearson never gave me the opportunity to question him or examine his documents.
When I arrived at the secondary inspection area, Mr. Rynearson had his windows rolled up. He
refused to roll his window down, and also refused my request that he exit his vehicle, which I
suggested s an alternative to speaking through a closed window. Mr. Rynearson was speaking
in a loud voice, almost yelling at me, demanding to know
if
he was being detained, to which I
answered yes. He insisted that he could not be detained at secondary inspection unless I had
reasonable suspicion that he was engaged in criminal behavior. I responded that I did not need
reasonable suspicion and refused to answer his questions since it was his responsibility to answer
my questions. Throughout the exchange, I kept explaining that he needed to roll down his
window so I could ask my questions, and he continued to refuse to do so. At one point
he
took
out a military ID card and driver s license and stuck them in the window sill so I could see them.
When I advised him that I needed to physically inspect them, he refused to roll down the window
and hand them to me.
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Mr. Rynearson s conduct in rolling up his window and challenging my inspection raised
my suspicion that he was a decoy or otherwise trying to distract me and the other agents by tying
us up with his vehicle, drawing resources from the checkpoint, so that other vehicles could pass
through without a thorough inspection. Drug smugglers are known to use decoys to draw the
attention of agents to the decoy vehicle while other vehicles following the decoy vehicle pass
through the inspection point. I was also concerned that the reason he would not roll down his
window was due to him having drugs hidden in the door compartment.
I decided that the best approach was to complete the immigration inspection and use the
results
of
that to determine whether any further inquiry was necessary. In the course
ofthe
exchange with Mr. Rynearson, he put what appeared to be a military ID card and his driver s
license on the inside window sill of his vehicle and informed me that he was in the military and
stationed at Laughlin Air Force Base, which I knew was located jus t outside Del Rio, Texas. I
asked him to hand me the identification cards so I could determine
if
they were genuine, and he
refused to roll down his window and provide them to me. t this point, I decided to call a
supervisor to the scene to determine how best to handle the situation created by Mr. Rynearson s
refusal to cooperate with the immigration inspection.
I then called Supervisory Border Patrol Agent Perez and requested that he respond to the
secondary inspection area and deal with Mr. Rynearson.
I could not complete my inspection because Mr. Rynearson s actions kept me from
asking
my
questions and inspecting his documents. I have been trained to conduct immigration
inspections by asking questions of the detainee face to face, with both myself and the person
being questioned speaking
in
a normal tone of voice, so I can judge the credibility of the person
with whom I am speaking. I am also always vigilant for my safety, which requires that I control
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Upon receiving the call, it took me approximately
1
to
15
minutes to arrive at the
checkpoint. At the time I received the call I was about 7 miles away and was on patrol duty. I
drove my assigned vehicle by the most direct route to the checkpoint and immediately exited my
vehicle and met with Border Patrol Acting Supervisor, Roy Ehresman, who briefed me on the
situation with Mr. Rynearson. I was informed that Mr. Rynearson had been referred to the
secondary inspection area for his immigration inspections, and was non-cooperative and would
not roll down the window
to
speak with Agent Lands. Mr. Rynearson placed his military
ID
and
out of state driver's license on the window seal, but would not roll down his window. I then
spoke to Border Patrol Agent, Justin Lands, who was on primary duty and
he
explained further
the situation at hand. I asked Agent Lands
ifth r
was a K-9 alert and he responded No.
I had no involvement with Mr. Rynearson prior to my arrival at the Uvalde Checkpoint.
Based on the briefing from Agents Ehresman and Lands, I decided to assume responsibility from
Lands for completion of the immigration inspection. I then proceeded directly to the secondary
inspection area. I walked over
to
Rynearson's vehicle to determine if he could hear me. At that
time, Rynearson had two passports, driver's license and military ID lodged between the window
and window seal. I asked Rynearson why he had not cooperated with the Agent Lands.
Rynearson replied that he did and that he recorded the entire stop live and
he
could show it to me
if I wanted. I asked for his documents to inspect and he rolled down his window approximately
one-half inch and slid his passports thru the window opening. I noticed that he had an official
United States passport, United States passport, military
ID
card and out
of
state driver's license
on the window seal. I also asked him for his commanding officer's name, which Rynearson
refused to give. I asked for the name of his commanding officer
so
that I would have some facts
to confirm his military identity.
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I proceeded into the checkpoint and called dispatch to run a record check thru either
Treasury Enforcement Communication System (TECS); Automated Targeting System (ATS); or
Central Index System (CIS) databases to confirm Mr. Rynearson s identity. While dispatch was
conducting the record check, I carefully scrutinized his passports to ensure that they were
genume. I have received specialized training in document fraud including the means and
methods of determining whether a passport is genuine, altered or forged. Based on my review of
Mr. Rynearson s documents, they appeared genuine and unaltered. I received confirmation from
dispatch that the passport(s were valid. At that point, while still inside the building, I decided
that Mr. Rynearson was in fact a United States citizen and there was
no
reason
to
detain him
further. Agent Lands came into the checkpoint and I informed him to release Mr. Rynearson and
to return Rynearson s passports and send him on his way.
I have reviewed Exhibit D, which is set
of
four videos depicting some
of
the events that
occurred during Mr. Rynearson s detention. I am the supervisory agent who is seen walking up
to the vehicle on video number 2 at approximately 7 minutes
33
seconds (00:07:32) into the
video. While the video is a fairly accurate depiction ofth checkpoint and secondary inspection
areas at the Uvalde checkpoint, there are several facts that are not accurately depicted on the
video. Mr. Rynearson, though his face is obscured is the person sitting inside the vehicle. First,
it appears that some portions of the video may have been edited out, and therefore the events that
occurred during this time may not be on the video. Second, since the video was shot from inside
the vehicle, and the microphones were located inside the vehicle as well, the video does not
accurately depict the loud noise level outside Mr. Rynearson s vehicle. There was noise from
traffic on Highway
90
headed towards Del Rio. There was noise under the canopy covering the
entire checkpoint from vehicles entering and (especially) leaving the checkpoint area. The entire
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time I was trying to speak with Mr. Rynearson this noise level continued and I had a difficult
time hearing Mr. Rynearson because he only had his window cracked open less than an inch or
two, s I often had to guess at what he was telling me. Third, the video does not depict any
events that occurred away from Mr. Rynearson s vehicle, including my arrival, my discussions
with Acting Supervisor Ehresman and Agent Lands, and my review of Mr. Rynearson s
documents.
I declare under penalty
of
perjury that the foregoing is true
a n ~ . r e c t ~ \
J\ \
Executed on August
;:;Z
,2012. / /// 1.
I
J \ ~ /
/
RAUL
P R Z
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