richard rynearson v. the united states of america, border patrol agent, captain raul perez

208
PLAINTIFF’S 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 )( PLAINTIFF’S AMENDED COMPLAINT CAPTAIN RAUL PEREZ, INDIVID., )( Defendants. PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT NOW COMES Plaintiff RICHARD RYNEARSON amending his complaint “as a matter of course” 1 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 Exhibit’s 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 (5 th Cir. 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 usually reserved 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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Recently, the U.S. District Court for the Western District of Texas in Del Rio dismissed a civil lawsuit, prior to discovery, against two Border Patrol agents on the grounds that the plaintiff did not demonstrate a violation of the Fourth Amendment to the U.S. Constitution and therefore the agents had qualified immunity against discovery or civil suit.The plaintiff, Richard Rynearson, argued that a thirty-four minute detention for a suspicionless immigration inspection sixty-seven miles from the Mexican border violated the Fourth Amendment's protection against unreasonable seizures. Rynearson provided video of the encounter that shows he offered a driver's license, a military ID, and two passports to the agents. The video further shows Rynearson answered every question asked of him by the agents, with the exception of a single question concerning the identity of his supervisor at his place of employment (a question the agent told Rynearson he did not have to answer).Still, the district court ruled that a thirty-four minute immigration detention was reasonable, and gave two separate arguments for its decision.DOC FIRST UPLOADED TO: http://veteransagainstpoliceabuse.org/AboutUs/BorderPatrolLawsuit.aspxDOC MIRRORED TO:http://copblock.org/rickrynearson

TRANSCRIPT

Page 1: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S 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 )( PLAINTIFF’S AMENDED COMPLAINT

CAPTAIN RAUL PEREZ, INDIVID.,

)(

Defendants.

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT

NOW COMES Plaintiff RICHARD RYNEARSON amending his complaint “as a matter

of course”1 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 Exhibit’s 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 (5th Cir. 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 usually

reserved 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

Page 2: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 2

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 Plaintiff’s 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 Plaintiff’s 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 Richard’s 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 in

detention 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.

Page 3: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 3

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

Page 4: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 4

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 Richard’s 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

Page 5: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 5

answer me earlier?” Agent Lands knew he had not asked that question earlier. Richard

responded, “You never asked me if I was a U.S. citizen.” Agent Lands informed Richard, “we've

got a supervisor coming” and left the secondary area. Richard put his military passport and his

personal passport on the window along with his driver’s license and military ID card.

11. Also at one point in the secondary checkpoint Agent Lands pretended not to hear

Richard when Richard asked if he was being detained and why. Lands could clearly hear

Richard’s queries. Richard’s car windows were not tinted and were unobstructed and Lands

could easily see there was no one but Richard in the car. Lands clearly says to Richard that

things will be done “the hard way” because Richard would not exit his car for the illegal search

of contraband and seizure. Richard was not legally required to exit his car. Lands falsely

claimed Richard was being evasive when in fact Richard was not being evasive. Lands falsely

claimed to Richard that Lands asked Richard about his immigration status before going to the

secondary checkpoint. Richard showed Lands his military ID and driver’s license yet was

detained for more than thirty minutes thereafter. Richard did not consent to any detention at any

time. Richard questioned Defendant Agent Lands’ request to go to the secondary inspection area

and the reason for being detained.

12. No agent requested to view the offered passports, until Captain Perez asked to see

them more than six minutes after Richard asked Agent Lands if he wanted a passport. After

giving the two passports to Captain Perez, Captain Perez asked Richard, “Was there any reason

you didn’t want to tell the agent your citizenship?” and stated, “that’s what we do right there on

primary, sir.” Captain Perez knew that Lands had not asked Richard about his citizenship.

Page 6: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 6

Richard responded, “He never asked me my citizenship.” Captain Perez then stated, “Let me

check out your passports, and we’ll 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 Richard’s commanding officer’s 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 Richard’s vehicle and person and to

try to get Richard to comply with further illegal search and seizure of Richard‘s vehicle and

person. Defendant Captain Perez informed Richard he would contact Provost Marshall and CID.

Captain Perez could easily have obtained Richard’s 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 Richard’s immigration

status but wanted to perform an illegal search and seizure of Richard and Richard’s 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 Richard‘s

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 Richard‘s illegal detention. Captain Perez knew that Lands was doing

illegal searches and seizures of vehicles and persons at the checkpoint and knew that’s what

Lands was trying to do to Richard and his vehicle. Perez believed Richard when Richard said

Page 7: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 7

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, driver’s 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.

Page 8: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 8

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 Richard’s

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 Richard’s

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 Richard’s 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 Richard’s 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 Richard’s 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

Page 9: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 9

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 Richard’s 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 won’t answer where you’re 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 Richard’s vehicle without consent or probable cause or reasonable

suspicion and took Richard‘s 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.

Page 10: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 10

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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PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 11

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 Rynearson’s rights under the Fourth, Fifth, Sixth

Page 12: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 12

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. Rynearson’s

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

Bivens Action-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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PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 13

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

Bivens Action-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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PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 14

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 Richard‘s 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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PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT Page 15

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 77012 Telephone: 713/320-3785

FAX: 713/893-6737

E-mail: [email protected]

Attorney 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

Page 16: RICHARD RYNEARSON V. THE UNITED STATES OF AMERICA, BORDER PATROL AGENT, CAPTAIN RAUL PEREZ

1

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,1 Supervisory 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

1 Not captioned, but alleged to be a defendant in paragraph 7 of Plaintiff’s Original Complaint. 2 Though not listed as a party in paragraphs 3 – 7, Plaintiff’s factual allegations mention “Defendant 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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2

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 Plaintiff’s 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 Plaintiff’s Original Complaint in determining whether to grant the motion. See Great

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. Plaintiff’s allegations must be evaluated solely under the Fourth Amendment.

The Fourth Amendment is the sole basis for Plaintiff’s 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. See McGuire 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 or Bivens).

Plaintiff’s 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

3Plaintiff’s allegation that the 14th Amendment 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 official’s 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 servants—the 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. denied 464 U.S.

897 (1983).

Plaintiff’s 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 liability—plausible or not--based on Perez’s 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. denied 537 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

4 Cases 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 of Columbia, 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 final judgments 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 Fourth Amendment'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 question by 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 the somewhat 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 seeming similarity between these two questions, they are distinct inquiries under 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 (5th Cir. 2012) (quoting

Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).

As demonstrated below, Defendant Lands and Perez’s 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 Plaintiff’s Version of Events Must be Evaluated with Reference to His Videotape.

The Court should measure the Plaintiff’s 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 Plaintiff’s

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 Plaintiff’s actions prolonged the time it took to complete the inspection.

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4. Defendants did not Violate Plaintiff’s 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 has held 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 probable cause that a particular vehicle contains illegal immigrants.

United States v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir.), cert. denied 539 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.

Rynearson’s 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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inspection is constitutionally permissible, and requires no additional articulable facts to justify

the referral. United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976). Plaintiff had no right

that the inspection be conducted at the primary checkpoint. There can be no doubt that the

referral to secondary inspection was objectively reasonable.

Plaintiff’s contention that the referral to secondary inspection was for a improper motive-

-to conduct a pretextual search of Mr. Rynearson and his vehicle—is speculative, and simply an

attempt to avoid responsibility for Plaintiff’s subsequent failure to cooperate with the inspection.

This allegation is not sufficient to overcome the defense of qualified immunity since the agent’s

actions need only be objectively reasonable. See United States v. Harris, 566 F.3d 422, 424 (5th

Cir. 2009), cert. denied 130 S.Ct. 1687 (2010) (motive of law enforcement officer in making a

stop irrelevant for purposes of determining whether the stop met Fourth Amendment standards).

c. The duration of the detention at secondary inspection did not violate Plaintiff’s Fourth Amendment rights Plaintiff prolonged the detention by refusing to answer questions

Plaintiff contends that his detention at secondary inspection “over 34 minutes” and was

therefore unreasonably long, and that he was detained there as a pretext for a search of his

vehicle and person that he contends would have been unlawful under the Fourth Amendment.

Each of these allegations is addressed in turn.

“’The permissible duration of an immigrant checkpoint stop is. . .the time reasonably

necessary to determine the citizenship status of the persons stopped,’ and ‘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.’” United States v. Ventura,

447 F.3d 375, 378 (5th Cir. 2006) (quoting United States v. Machuca-Barrera, 261 F.3d 425, 433

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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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s actions, not Agent Lands’

actions, that prolonged the inspection. Cf. United States v. Sharpe, 470 U.S. at 485.

Plaintiff’s 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 Plaintiff’s 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 driver’s license or military ID to Agent Lands—he 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 Perez’s 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 officer’s 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. Plaintiff’s 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 Plaintiff’s 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’ reaction—calling his supervisor to take

over—occurred 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 PITMAN UNITED STATES ATTORNEY

BY: /s/ Harold E. Brown Jr.

HAROLD E. BROWN, JR. Assistant United States Attorney Oklahoma Bar No. 001192 601 N.W. Loop 4l0, Suite 600

San Antonio, Texas 78216 (210) 384-7320

(210) 384-7322 Fax [email protected]

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CERTIFICATE OF SERVICE

I hereby certify that on September 24, 2012, I electronically filed the foregoing document with 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 CMRRR

to Plaintiff’s 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 Rynearson’s 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, Rynearson’s failure to

roll down his window all the way, and the noise from a tractor-trailer right behind Rynearson’s

vehicle (Exhibit A, page 3; Exhibit D, 00:00:25-48 (showing the tractor pulling in behind

Rynearson’s 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. Rynearson’s 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 you’re 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 driver’s 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 Perez’s 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 Plaintiff’s vehicle (Exhibit B, page 2; Exhibit D, part 2,

07:32). As Agent Perez approached Mr. Rynearson’s vehicle he noticed that Mr. Rynearson had

passports stuck on the inside of his window (Exhibit B, page 2). After tapping on the driver’s

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 Rynearson’s 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 person’s 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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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 Agent’s

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 driver’s

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 Attorney Oklahoma Bar No. 001192 601 N.W. Loop 4l0, Suite 600

San Antonio, Texas 78216 (210) 384-7320

(210) 384-7322 Fax [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on September 24, 2012, I electronically filed the foregoing document with 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

/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

3

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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.

If 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 of minutes. If 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 as 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.

4

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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 just 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. At 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 5

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the situation, and this situation was difficult to control because of the barrier between us. I

cannot inspect documents unless they are handed to me so I can determine whether they are

genuine, and when Mr. Rynearson refused to roll down his window, this prevented me from

inspecting his documents. Had he rolled down the window when I requested him to do so, and

answered my questions in a normal tone of voice, at most I would have looked at his

identification, asked a few brief questions and sent him on his way.

Mr. Rynearson's actions were highly unusual. While it is not unusual for persons coming

through the checkpoint to question why they are being detained and asked questions about their

citizenship, in almost all instances their prompt answers to my questions, coupled with a lack of

any suspicious behavior have them on their way in two minutes or less. Mr. Rynearson's actions

were calculated to make the inspection as difficult as possible.

With regard to Supervisory Agent Perez's actions, I can only state that he was a roving

supervisor and was not present at the checkpoint when I detained Mr. Rynearson. He was on the

road away from the checkpoint, and it took him between 10 and 15 minutes to reach the

checkpoint. As a roving supervisor, Supervisory Agent Perez did not direct my actions on the

checkpoint that day, but was simply available if any agent needed him to respond to a situation.

Once Supervisory Agent Perez arrived on the scene, he dealt with Mr. Rynearson and my

involvement in the incident was over.

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 agent who stopped Mr. Rynearson at the

checkpoint and I am the one who directed him and questioned him at secondary. The remainder

ofthe events are as I described them above, but there are several facts that are not accurately

depicted on the video. First, it appears that some portions of the video may have been edited out. 6

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Upon receiving the call, it took me approximately 10 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 ifthere 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. 2

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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 ofthe 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 3

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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, so 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 an~.rect~,\

/ 'J\'\ Executed on August .;:;Z ,2012. /' ///,1. I

// J'\~/ /

/ '

RAUL PEREZ .

4

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DECLARATION OF JUSTIN K. LANDS

I, Justin K. Lands, being over the age of 18, make the following statement from my

personal knowledge of the facts recited below.

I have previously made a declaration in this case and, after reviewing the revised

allegations in the First Original Amended Complaint, I make the following additional statements

from my personal knowledge of the facts.

Prior to my employment as a United States Border Patrol Agent, I was employed as a

police officer with San Angelo Police Department from April 16, 2004 until October 13,2008. I

graduated from San Angelo Police Department on August 27, 2004. In April 16, 2004, I was

hired with the San Angelo Police department and I attended The Concho Valley Council of

Governments Police Academy in San Angelo, Texas. On August 31, 2004, I received my

TCLEOSE certification. While I was employed with San Angelo Police Department I worked

patrol duties which consisted of responding to calls for service (domestic disturbances, child

abuse calls, burglaries, thefts, and robberies, fights, etc.), conducting traffic stops, street levcl

narcotic investigations arrests, proactive and community policing. I was also asked to be a Field

Training Officer, which consisted of a specialized training. During my time as a Field Training

Officer, I trained numerous new officers on how to apply what they were taught in the academy

and in the policies and procedures of my department.

At one point I told Mr. Rynearson that we could do the inspection "the hard way," by

which I meant that it would take more time than necessary to complete the inspection because he

chose not to cooperate with my questioning, by not rolling down his window, answering my

questions, and handing me his documents.

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At secondary inspection, I asked Mr. Rynearson to exit his vehicle for officer safety

purposes. This is done for the safety of the vehicle occupants as well as me and fellow officers.

This also facilitates the immigration check since it is easier to question someone when they are

out of their car. When Mr. Rynearson declined to get out of the vehicle and it became obvious

that Mr. Rynearson would not get out of the vehicle, I decided to conduct the inspection with

him in the vehicle.

Mr. Rynearson mischaracterizes his actions while I was attempting to question him in

several ways. First, in paragraph lOaf the First Amended Complaint, he states that he

"provided" his driver's license and military ID to me. As demonstrated on the video of this

incident, he stuck them on the inside of the window sill of his vehicle. An immigration

inspection consists of ascertaining the identity of the person being questioned as well as their

immigration status. In order to complete my inspection, I needed to physically inspect his

documents, which means I need to hold them in my hand and view them for current validity,

tampering or signs that they are forged. That cannot be done by looking at them through the

window of a vehicle. Mr. Rynearson's refusal to roll down his window and provide his

documents to me prevented me from completing my inspection because I could not verify his

identity. He also mischaracterizes my request for him to exit his vehicle. I did not direct him to

get out of his vehicle. I requested that he get out of his vehicle. I did this for the reasons stated

above. At no point did I attempt to force Mr. Rynearson from his vehicle.

Mr. Rynearson also alleges that I was attempting to do an illegal search and seizure of

him and his vehicle (First Amended Complaint, , 9, 11, 17, and elsewhere in that document), I

categorically deny this allegation. I had no intention of searching him or his vehicle.

2

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After my attempts to inspect him failed, I called for a supervisory agent to respond to the

secondary inspection area and deal with Mr. Rynearson.

I am particularly aware of my responsibility to be courteous to the person I am

questioning, and I believe that yelling at someone I am trying to question through a closed car

window is discourteous.

Mr. Rynearson's actions were highly unusual. \Vhile it is not unusual for persons coming

through the checkpoint to question why they are being detained and asked questions about their

citizenship, in almost all instances their prompt answers to my questions, coupled with a lack of

any suspicious behavior have them on their way in two minutes or less. Mr. Rynearson's actions

were calculated to make the inspection as difficult as possible.

Contrary to the allegations in the First Amended Complaint, as a roving supervisor,

Supervisory Agent Perez did not direct my actions on the checkpoint that day, but was simply

available if any agent needed him to respond to a situation. His supervision over me in this

situation began when he arrived on scene and took control of the inspection of Mr. Rynearson.

As I stated in my original declaration, once Supervisory Agent Perez arrived on the scene, he

dealt with ML Rynearson and my involvement and the incident was over.

ML Rynearson's attomey also alleges in the First Amended Complaint that there is a

practice of conducting immigration stops to coerce or otherwise improperly conduct searches of

vehicles at the Uvalde checkpoint. This is a false, scurrilous statement. There is no such

practice or policy_ I have not nor would I ever conduct a search without legal authority, nor

would I coerce anyone into allowing a search. My oath as a Border Patrol Agent requires me to

obey as well as enforce the law, and I do that every day as I perform my duties to protect the

3

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officer so that I would have some facts to confirm his military identity. After leaving

Rynearson's vehicle, I went into the office and called Laughlin AFB and spoke with Captain

Dinesen, Chief Security Force. After confirming with Capt. Dinesen that Major Rynearsen was

in fact stationed at Laughlin AFB, I informed him of the encounter with Rynearsen at the Uvalde

Border Patrol checkpoint. At this point, Capt. Dinesen informed me that Rynearsen had previous

encoWlters with other law enforcement agencies. This confirmation process took approximately

ten to fifteen minutes.

In reviewing the additional allegations in the First Amended Complaint, I make the

following additional statement. Contrary to the allegation in paragraph 13, I never asked Mr.

Rynearson if I could search his vehicle. T made no attempt to open or enter his vehicle. 1he

video (Exhibit D) demonstrates these facts.

Mr. Rynearson's attorney also alleges in the First Amended Complaint that myself, Agent

Lands and other Border Patrol Agents have a practice of conducting immigration stops to coerce

or othervvise improperly conduct searches of vehicles at the Uvalde checkpoint. This is a false,

scurrilous statement. There is no such practice or policy. I am not aware of any such practice by

Agent Lands or any other Border Patrol Agent at the Uvalde checkpoint or any other location. I

have not nor would I ever conduct a search without legal authority, nor would I coerce anyone

into allowing a search. I would not tolerate such conduct by any Border Patrol Agent under my

supervision or whom I was working with. My oath as a Border Patrol Agent requires me to obey

as well as enforce the law, and I do that every day as I perform my duties to protect the people of

this nation. I do this even when confronted by persons, such as Mr. Rynearson, who are

obviously attempting to make my job difficult or the jobs the agents under my supervision.

2

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The First Amended Original Complaint also alleges that I conspired with Agent Lands to

conduct an illegal search of Mr. Rynearson and his vehicle. This is a false, defamatory charge.

There was no such conspiracy. I never agreed to undertake such a scheme with anyone

concerning any person, including Mr. Rynearson.

The statement concerning my request for information concerning Mr. Rynearson's

commanding officer's name are also false. I made this request as part of my attempt to verify his

claim to be in the Air Force. Any intimidation Mr. Rynearson felt as a result of this request can

be gauged from his demeanor as depicted on the video (Exhibit D) and his undoubted

understanding that he was acting in a manner that was entirely unprofessional coming from a

commissioned officer in the Air Force.

Mr. Rynearson's attorney also alleges that I acknowledged that Agent Lands had not

asked him about his immigration status (First Amended Complaint, ,-r 4). I simply chose not to

argue the point with Mr. Rynearson when he made that statement. This is confirmed by the

video (Exhibit D).

While J was interacting with Mr. Rynearson on March 18, 2012, I had no knowledge of

similar incidents involving Mr. Rynearson at the Uvalde checkpoint. It was fue first and only

time I have ever met Mr. Rynearson. I had never heard of him or the incidents that his attorney

describes in the First Amended Complaint.

I declare under penalty of perjury that the foregoing is true and correct. "

// ." ) /~' '\. ,', /l //' \ / /(

Executed on September 24, 2012. / L< // /' ( Y·~~ /' .. ~~ / ;i/V i ~"""-b //7 ~

_. c:.~.

PEREZ' c:......

3

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1

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. )

DEFENDANTS LANDS AND PEREZ’S OPPOSED MOTION TO STAY DISCOVERY AND SCHEDULING ORDER RECOMMENDATIONS

Comes now Defendants Lands and Perez, by and through the undersigned Assistant

United States Attorney, filing this opposed motion to stay discovery and scheduling order

recommendations. The grounds for the motion are stated below.

ARGUMENT AND AUTHORITIES

Local Rule CV-16(c) provides that scheduling order recommendations must be filed

within 60 days of “any” defendant’s appearance in this case. This requirement also triggers a

requirement under Rule 26(f) that the parties meet and confer on discovery and that they make

initial disclosures under Rule 26(a). For the reasons stated below, Defendants Lands and Perez

request that the Court enter an order staying compliance with these requirements until after it

rules on their Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Docket

No. 29).

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2

On September 24, 2012 Defendants Lands and Perez filed a motion to dismiss under

12(b)(6) alleging that the Plaintiff’s First Amended Original Complaint failed to state a claim

upon which relief could be granted and, in the alternative, for summary judgment on qualified

immunity.

It is established Fifth Circuit law that a defendant who asserts the defense of qualified

immunity is entitled to a stay of discovery unless the Court finds: (1) that the complaint alleges

sufficient facts to overcome the defense of qualified immunity; and (2) if the Court finds that the

complaint alleges facts that, if true, would negate the defense, that the discovery sought by the

Plaintiff will clarify the facts necessary to rule on the defense of qualified immunity on summary

judgment. Winstead v. Box, 419 Fed. Appx. 468, 469 (5th Cir. 2011) (citing Wicks v. Miss. State

Emp't Servs., 41 F.3d 991, 994 (5th Cir.1995).1

The qualified immunity defense asserted by Defendants Lands and Perez requires an

objective determination by the Court of the facts pleaded by the Plaintiff. Should the Court find

that the pleading is sufficient to negate the defense of qualified immunity, then the Court must

proceed to consider the summary judgment motion filed by the defendants. The Court must

consider the motion and its supporting evidence. Defendants have provided their version of

events and provided the Plaintiff’s video as evidence. Defendants are entitled to a ruling on the

motion based on the evidence they presented without additional discovery.

Plaintiff asserted in footnotes to his First Amended Original Complaint that he needs

discovery to test his assertion that Defendants Lands and Perez took actions that extended his

1 “[T]he trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense. It must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery.” Crawford-El v. Britton, 523 U.S. 574, 597-598 (1998).

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3

detention with the intent to conduct a search. Qualified immunity requires the Court to

determine whether their actions were objectively reasonable. Their subjective intent is irrelevant

to the defense if their actions were objectively reasonable. The Defendants have provided their

declarations and the Plaintiff’s own video of their encounter with Plaintiff. This evidence

demonstrates that Defendants Lands and Perez acted reasonably when confronted with the

Plaintiff’s discourteous, evasive and obstreperous behavior. Until and unless the Plaintiff can

sustain his burden of proof to demonstrate that their actions were not objectively reasonable, he

is not entitled to discovery.

CERTIFICATE OF CONFERENCE

I certify that I have conferred with opposing counsel concerning this motion and that he

is opposed to this motion.

WHEREFORE, premises considered, the Defendants request that this Court enter the

attached proposed order staying discovery pending a ruling on the motion to dismiss filed by the

United States.

Respectfully Submitted,

ROBERT PITMAN UNITED STATES ATTORNEY /s/ Harold E. Brown, Jr. HAROLD E. BROWN, JR. Assistant United States Attorney Okla. Bar No. 1192 601 NW Loop 410, Suite 600 San Antonio, Texas 78216 (210) 384-7320 (210) 384-7312 (fax) [email protected]

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4

CERTIFICATE OF SERVICE

I hereby certify that on September 24, 2012, I electronically filed the foregoing document with 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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5

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. )

ORDER STAYING DISCOVERY

Before the Court is Defendants’ Lands and Perez’s Opposed Motion to Stay Discovery

and Scheduling Order Recommendations filed by Defendants Lands and Perez, requesting the

Court to stay the requirements of Local Rule CV-16 requiring the parties to meet and confer on

discovery (as also required by Fed. R. Civ. Proc. 16 and 26(f)), and also requiring the parties to

file scheduling order recommendations. The motion also requests the Court to enter an order

staying the deadline for entering a scheduling order pending a ruling on their motion. The Court

finds that the motion is well-taken and it is therefore GRANTED.

IT IS ORDERED that the requirements and deadlines imposed by Federal Rules of Civil

Procedure 16 and 26, and Local Rule CV-16 are suspended until such time as the Court rules on

Defendants Lands and Perez’s Motion to Dismiss or, in the Alternative, Motion for Summary

Judgment (Docket No. 29). At that time the Court will enter an order setting a deadline for the

parties to provide scheduling recommendations to the Court.

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6

Signed this __________ day of ______________________, 2012.

________________________________________ ALIA MOSES UNITED STATES DISTRICT JUDGE

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 1

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

RICHARD RYNEARSON, )

)

Plaintiff, )

v. ) Civil Action No.: DR:12-cv-0024-AM-CW

)

THE UNITED STATES OFAMERICA, )

BORDER PATROL AGENT LANDS, )

Individually, and BORDER PATROL )

AGENT CAPTAIN RAUL PEREZ, )

Individually, )

)

Defendants. )

PLAINTIFF’S MOTION FOR CONTINUANCE

FROM SUMMARY JUDGMENT TO CONDUCT DISCOVERY

TO THE HONORABLE JUDGE OF THE COURT:

NOW COMES Plaintiff Rynearson, pursuant to Fed. R. Civ. P. 56(d) and the FRCPs, by

and through the undersigned attorney, and respectfully files this PLAINTIFF’S MOTION FOR

CONTINUANCE FROM SUMMARY JUDGMENT TO CONDUCT DISCOVERY and will

show the following:

MOTION FOR CONTINUANCE TO CONDUCT DISCOVERY

INTRODUCTION AND SUMMARY OF THE PLAINTIFF’S RESPONSE and

CONCISE STATEMENT OF THE REASONS FOR THE MOTION

Before any discovery was possible in this civil action defendants filed a motion to stay

discovery and refused to meet for a scheduling conference. On September 22, 2012 undersigned

counsel attempted to move forward with the a meeting to confer prior to filing the materials

pursuant to the scheduling and planning meeting. Opposing counsel e-mailed back:

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 2

“There is no need to confer since I have moved to stay discovery and scheduling

order recommendations on behalf of the United States. I’ll be doing the same for

the Agents on Monday. Please read the Court’s order mooting the motions. I have

leave to refile them and that is what I am doing. Should the Court deny the

motions, I’ll take an interlocutory appeal.”

See FACTS APPENDIX, Exhibit 1, Declaration Of Randall Kallinen

Defendants have filed motions for dismissal and summary judgment which, if granted,

would dismiss all claims. The summary judgment materials include declarations of defendants

Perez and Lands which are relied upon in order to support the summary judgment as to

Rynearson’s Biven’s claim. See Exhibit’s A, B and E to defendants Lands’ and Perez motion to

dismiss/summary judgment. Mr. Rynearson needs additional time for discovery to begin and

proceed to check out the allegations in these declarations. Culwell v. City of Fort Worth, 468

F.3d 868, 871 (5th Cir. 2006).

FACTS

See Facts Appendix.

SPECIFIC DISCOVERY NEEDED

Defendants Lands and Perez make many statements as to why a 34 minute detention was

legal and proper when the Fifth Circuit has opined 3 minutes and 5 minutes can be too long.

United States v. Jones, 234 F.3d 234, 241 (5th Cir.2000); United States vs. Dortch, 199 F.3d

193, 196 (5th Cir. 1999). Nonetheless even though defendants’ assertions seem wholly without

merit plaintiff needs to check defendant Lands’ and Perez’s summary judgment evidence

assertions by at least sworn deposition testimony and requests for production as to the Border

Patrol reports and the videos of the scene as well as by obtaining the policies defendants refer to.

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 3

Therefore, pursuant to Fed. R. Civ. P. 56(d), Mr. Rynearson requires discovery—of

which there has been none—in order to “present facts essential to its opposition,” id., and hereby

requests that Defendants’ motion to dismiss the Biven’s claim be denied as premature, or at the

very least Mr. Rynearson be granted a continuance.

Mr. Rynearson is entitled to an adequate opportunity for discovery by depositions and

requests for production of Lands and Perez that would be probative of material elements of his

claims before this Court rules on summary judgment. Mr. Rynearson was detained long past the

reasonable duration of an immigration stop, with no reasonable suspicion justifying the

additional detention; neither Defendant Lands nor Defendant Perez acted diligently in conducting

an investigation relevant to the justification for the stop; and Mr. Rynearson’s detention was

extended by, at the least, ten to fifteen minutes for investigation into unrelated matters. Although

the summary judgment evidence supports a prima facie case that Mr. Rynearson’s thirty-four-

minute detention was unreasonable, further discovery would enable Mr. Rynearson to establish

additional facts material to his opposition to summary judgment and to his claims. Accordingly,

Defendants motion must be denied as premature.

Whether Defendants acted diligently in confirming Mr. Rynearson’s immigration status,

and whether they extended the detention beyond the reasonable scope for an immigration stop in

order to investigate unrelated matters are both material to Mr. Rynearson’s claims. See Macias,

658 F.3d at 522; Machuca-Barrera, 261 F.3d at 432. Without discovery, Mr. Rynearson is

precluding from obtaining the information showing the failure of diligence in investigating by

Defendants or the full extent of the efforts they undertook to investigate matters other than

immigration status. With an opportunity for discovery by depositions of Lands and Perez, Mr.

Rynearson would be able to obtain probative information regarding, inter alia: the precise timing

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 4

of when Defendant Perez began his records check and when it was concluded, through deposition

of Defendant Perez and investigation into other witnesses who might have information on this

matter; why Defendant Lands summoned an off-site supervisor, extending the detention, when

there appears to have been an on-site supervisor (Acting Supervisor Roy Ehresman, see Def. Ex.

B at 2), and whether this was standard policy; the extent of “military status” matters that

Defendant Perez investigated, as some evidence indicates that he did not conclude his

investigation into that topic with his conversation with Captain Dinesen, see Def. Ex. F at 2, but

also called Mr. Rynearson’s commanding officer, Lt. Col. Nesmith, whether communication was

actually impeded by wind noise or traffic, through depositions of Defendants and investigation

with other witnesses who may have been on the scene; whether standard policies prescribe that

agents ask questions related to immigration status at the primary checkpoint rather than questions

related to car ownership; whether it is standard practice or policy to order an individual out of his

car when a search is not intended; whether it is standard practice or policy, as Defendant Lands

asserts, see Def. Ex. A at 5, to require a detainee to position himself to have a “face to face”

conversation with the agent; and what was conveyed between Defendant Lands, Acting

Supervisor Ehresman, and Defendant Perez as to the necessity, purpose, and justification for

further detention of Mr. Rynearson when Defendant Perez arrived on the scene. See Exhibit 1 to

FACT APPENDIX (declaration setting forth needed discovery).

As Defendants themselves suggest, much of the information necessary to establish that

Defendants acted diligently is within the control of Defendants and is not reflected in the video

evidence. See Def. Ex. B (“[T]he video does not depict any events that occurred away from Mr.

Rynearson’s vehicle, including [Agent Perez’s] arrival, [his] discussions with Acting Supervisor

Ehresman and Agent Lands, and [his] review of Mr. Rynearson’s documents). Yet Mr.

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 5

Rynearson has been given no opportunity to test the veracity of Defendant Lands and Perez’s

assertions as to what actions they took, when they took them, and how long they took, or to

inquire as to additional detail not set forth in their declarations, through depositions of the

Defendants or discovery of additional witnesses or other evidence, such as records of

identification checks run through relevant databases. Summary judgment is plainly premature

when Mr. Rynearson has been deprived of any opportunity to discover relevant, material facts,

and he has at the very least met the standard for a continuance under Fed. R. Civ. P. 56(d).

Although Defendants claim that communication was impeded due to wind noise, Def.

Exhibit A, page 3) the video does not reflect such noise and Mr. Rynearson has had no

opportunity to further investigate it through depositions of Defendants or interviews with other

individuals who were present. Regardless, there was a continuous exchange of information

uninterrupted by the window not being fully rolled down. Defendants’ video Exhibit D.

Other depositions questions relevant to unreasonable seizure Bivens claim would be, for

example, are Border Patrol agents instructed that they have the right to order an individual out of

his vehicle ? What is the training on failure to respond to questions ? What is the training on

extending detention when one can communicate and ascertain all necessary facts ? When can US

Border Patrol agents further detain an individual.

On the conspiracy claim, Mr. Rynearson has had discovery by deposition of Lands and

Perez to rebut their accusations or to test the veracity of those statements.

Nor has Mr. Rynearson been able to interview or investigate the newly-identified witness,

Supervisory Agent Ehresman, who could verify or discredit defendant Land’s and Perez’s

version of relevant events and as to the policies of detention by the US Border Patrol.

AUTHORITIES

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 6

IMMIGRATION CHECKPOINT STOPS AND DETENTIONS1

In United States v. Martinez-Fuertes  (428 U.S. 543 (1976)) the Supreme Court upheld

the constitutionality of immigration checkpoints at which INS agents would stop travelers

without suspicion for questioning about immigration status. The Court held that suspicionless

“stops for brief questioning routinely conducted at permanent checkpoints are consistent with the

Fourth Amendment.”  However, it explicitly limited its holding to stops and questioning to

enforce the immigration laws;  searches or “further detention ․ must be based on consent or

probable cause.”  Id. at 567. Thus, the Supreme Court created a narrow exception to the general

requirements of reasonable suspicion and probable cause. Since Martinez-Fuerte, the Supreme

Court has upheld suspicionless stops at checkpoints on only one occasion. In Michigan

Department of State Police v. Sitz (496 U.S. 444 (1990)) the Supreme Court upheld the use of

checkpoints to look for drunk drivers which is not an issue with the case at bar.

The Supreme Court then was then challenged with suspicionless stops at checkpoints

created to interdict drugs. City of Indianapolis v. Edmond  (531 U.S. 32 (2000)) held such

checkpoints unconstitutional. The Court stated that the validity of suspicionless stops at a

checkpoint depends on the “programmatic purpose” of the checkpoint. Id. at 46. It pronounced,

“We have never approved a checkpoint program whose primary purpose was to detect evidence

of ordinary criminal wrongdoing.”  Id. at 41. The government’s interest in intercepting illegal

drugs, the Court held, was indistinguishable from the government’s interest in “ordinary crime

control.”  Id. at 44. The special “problems of policing the border” for illegal immigrants

1 The majority of this argument is taken from Ellis cites United States v. Machuca-Barrera, 261

F.3d 425 (5th Cir.2001)

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 7

distinguished the checkpoints approved in Martinez-Fuerte. Id. at 41.

The distinction between immigration and drug checkpoint is therefore crucial to

understand the limits of immigration checkpoints and to determine the lawful scope and duration

of detentions at immigration checkpoints.

Regarding stops based on reasonable suspicion the Supreme Court has long held that the

justifying purpose of a stop constrains its lawful extent. “[T]he Constitution [is] violated [ ]

when the detention extend[s] beyond the valid reason for the initial stop.”  United States v.

Dortch, 199 F.3d 193, 198 (5th Cir.1999); Florida v. Royer, 460 U.S. 491, 500 (1983) (“an

investigatory detention must be temporary and last no longer than is necessary to effectuate the

purpose of the stop.”);  United States v. Shabazz, 993 F.2d 431, 437 (5th Cir.1993)( “We

recognize that a detention may be of excessively long duration even though the officers have not

completed and continue to pursue investigation of the matters justifying [the stop].”).For

example, in the typical case of an automobile stop, a seizure is unjustified in the absence of

reasonable suspicion of unlawful activity. Thus, when an officer stops a person based on

reasonable suspicion of some crime, the officer may detain that person for only long enough to

investigate that crime. Once the purpose justifying the stop has been served, the detained

person must be free to leave. United States v. Jones, 234 F.3d 234, 241 (5th Cir.2000);  

In determining the legality of a stop the question is whether the seizure exceeded its

permissible duration. We look to the scope of the stop in order to determine its permissible

duration. Dortch, 199 F.3d at 199 (refusing to “endorse police seizures that are not limited to the

scope of the officers' reasonable suspicion and that extend beyond a reasonable duration.”).

ONLY INTERESTED WITNESSES REFUTE RYNEARSON’S CLAIMS

Only the defendants themselves through affidavits and declarations refute Rynearson’s

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 8

versions of the events. In deciding whether to grant judgment as a matter of law, a “court should

give credence to the evidence favoring the nonmovant as well as that evidence supporting the

moving party that is uncontradicted and unimpeached, at least to the extent that that evidence

comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133,

151 (2000)(emphasis added).

“Cases that turn crucially on the credibility of witnesses’ testimony in particular should

not be resolved on summary judgment.” Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999).

When liability is disputed an officer’s account will invariably be favorable to himself and the

credibility of that account is crucial. Gooden v. Howard County, Md., 954 F.2d 960, 971 (4th

Cir. 1992). Clearly, summary judgment cannot rest on the statements of the interested witnesses

presented herein.

CONFERENCE

Defendants have already filed a motion to stay discovery until the defendants’ motions to

dismiss and fir summary judgment are ruled upon so they are opposed to this motion. Plaintiff’s

counsel even tried to move forward on the scheduling conference but opposing counsel refused

to meet stating:

“There is no need to confer since I have moved to stay discovery and scheduling

order recommendations on behalf of the United States. I’ll be doing the same for

the Agents on Monday. Please read the Court’s order mooting the motions. I have

leave to refile them and that is what I am doing. Should the Court deny the

motions, I’ll take an interlocutory appeal.”

. Even after all that plaintiff’s counsel emailed the instant motion for continuance to conduct

discovery by email October 15, 2012 but no reply has been forthcoming.

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PLAINTIFF’S MOTION FOR CONTINUANCE Page 9

CONCLUSION & PRAYER

Clearly the foregoing shows that discovery is needed to adequately address the motions

that defendants have filed and a continuance to conduct discovery is warranted.

WHEREFORE, Richard Rynearson requests that this motion for continuance to conduct

discovery be Granted and for all relief plaintiff shows himself entitled.

RESPECTFULLY SUBMITTED

LAW OFFICE OF RANDALL L KALLINEN PLLC

/S/ etÇwtÄÄ _A ^tÄÄ|ÇxÇ

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 77012 Telephone: 713/320-3785

FAX: 713/893-6737

E-mail: [email protected]

Attorney 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 October 15, 2012.

Harold E. Brown, AUSA (ECF)

601 N.W. Loop 410, Suite 600

San Antonio, Texas 78216 /s/ etÇwtÄÄ _A ^tÄÄ|ÇxÇ

Randall L. Kallinen

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FACT APPENDIX Page 1

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

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).

Randall Kallinen’s declaration is support of motion for continuance is incorporated into

this fact appendix as if fully set forth herein. Exhibit 1.

Defendant Lands has filed two declarations (Exhibits A and E to his motion for

summary judgment/dismissal) and are incorporated by reference as if fully set forth herein.

Defendant Perez has filed a declaration (Exhibit B to his motion for summary

judgment/dismissal) and is incorporated by reference as if fully set forth herein.

On September 22, 2012 plaintiff’s counsel Randall Kallinen attempted to move forward

with the a meeting to confer prior to filing the materials pursuant to the scheduling and planning

meeting.

Harold Brown counsel for defendants e-mailed back September 22, 2012:

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FACT APPENDIX Page 2

“There is no need to confer since I have moved to stay discovery and scheduling

order recommendations on behalf of the United States. I’ll be doing the same for

the Agents on Monday. Please read the Court’s order mooting the motions. I have

leave to refile them and that is what I am doing. Should the Court deny the

motions, I’ll take an interlocutory appeal.”

RESPECTFULLY SUBMITTED

LAW OFFICE OF RANDALL L KALLINEN PLLC

/S/ etÇwtÄÄ _A ^tÄÄ|ÇxÇ

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 77012

Telephone: 713/320-3785

FAX: 713/893-6737

E-mail: [email protected]

Attorney 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 October 15, 2012.

Harold E. Brown, AUSA (ECF)

601 N.W. Loop 410, Suite 600

San Antonio, Texas 78216 /s/ etÇwtÄÄ _A ^tÄÄ|ÇxÇ

Randall L. Kallinen

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DECLARATION OF RANDALL KALLINEN Page 1

IN THE 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 )( DECLARATION

CAPTAIN RAUL PEREZ, INDIVID.,

)(

Defendants.

DECLARATION OF RANDALL KALLINEN

1. I, Randall Kallinen, am the plaintiff’s lawyer in the above entitled and numbered

cause and of sound mind and at least 18 years of age. I have never been convicted of a felony or

crime of moral turpitude in my life.

2. Defendant Lands has filed two declarations (Exhibit’s A and E to his motion for

summary judgment/dismissal) and they are incorporated by reference as if fully set forth herein.

Plaintiff needs to check the veracity of Land’s statements by deposition and requests for

production of videos and reports of his allegations in his declaration at Exhibit A that:

-he could not hear Rynearson (was he hard of hearing, what was the noise level, why did

Lands then answer Rynearson’s queries, etc.) at page 3;

-he received specific training in detentions at page 3;

--he was only concerned about immigration (page 3)--then why did he not ask about

citizenship ? Why did he have the drug dog come to the car ?;

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DECLARATION OF RANDALL KALLINEN Page 2

--that Rynearson was uncooperative (page 4)--why is questioning Lands uncooperative ?;

--that Rynearson refused to hand over identification (page 4).

3. There are many more statements relevant to plaintiff’s Bivens claims that are in

Lands’ declarations that plaintiff needs to investigate through depositions and requests for

production of at least videos and reports.

4. Plaintiff needs to check the veracity of Perez’s statements by deposition and

requests for production of videos and reports of his allegations in his declaration at Exhibit B

about:

--what Land’s told him about Rynearson’s behavior;

--why he had to check Rynearson out for himself (page 2);

--why he asked Rynearson “why he had not cooperated with Agent Lands” when

Rynearson had cooperated (page 2).

5. There are many more statements relevant to plaintiff’s Bivens claims that are in

Perez’s declaration that plaintiff needs to investigate through depositions and requests for

production of at least videos and reports.

6. Additional discovery in the form of depositions and request for production is

needed to confirm whether Defendants acted diligently in confirming Mr. Rynearson’s

immigration status, and whether they extended the detention beyond the reasonable scope for an

immigration stop in order to investigate unrelated matters which are both material to Mr.

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DECLARATION OF RANDALL KALLINEN Page 3

Rynearson’s Biven’s claims. See Macias, 658 F.3d at 522; Machuca-Barrera, 261 F.3d at 432.

7. Similar discovery techniques are needed on the Defendants’ failure to diligently

investigate properly and without undue delay and the full extent of the efforts they undertook to

investigate matters other than immigration status.

8. Depositions of defendants and request for production are needed to obtain

probative information regarding, inter alia: the precise timing of when Defendant Perez began

his records check of Rynearson and when it was concluded, through deposition of Defendant

Perez and investigation into other witnesses who might have information on this matter, why

Defendant Lands summoned an off-site supervisor, extending the detention, when there appears

to have been an on-site supervisor (acting Supervisor Roy Ehresman, see Def. Ex. B at 2), and

whether this was standard policy; the extent of “military status” matters that Defendant Perez

investigated, as some evidence indicates that he did not conclude his investigation into that topic

with his conversation with Captain Dinesen, see Def. Ex. F at 2, but also called Mr. Rynearson’s

commanding officer, Lt Col Nesmith whether communication was actually impeded by wind

noise or traffic, through depositions of Defendants and investigation with other witnesses who

may have been on the scene; whether standard policies prescribe that agents ask questions related

to immigration status at the primary checkpoint rather than questions related to car ownership;

whether it is standard practice or policy to order an individual out of his car when a search is not

intended; whether it is standard practice or policy, as Defendant Lands asserts, see Def. Ex. A at

5, to require a detainee to position himself to have a “face to face” conversation with the agent;

and what was conveyed between Defendant Lands, Acting Supervisor Ehresman, and Defendant

Perez as to the necessity, purpose, and justification for further detention of Mr. Rynearson when

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DECLARATION OF RANDALL KALLINEN Page 4

Defendant Perez arrived on the scene. See Declaration of Randall Kallinen setting forth the need

for the foregoing discovery, Exhibit 1 to Facts Appendix.

9. As Defendants themselves suggest, much of the information necessary to establish

that Defendants acted diligently is within the control of Defendants and is not reflected in the

video evidence. See Def. Ex. B (“[T]he video does not depict any events that occurred away

from Mr. Rynearson’s vehicle, including [Agent Perez’s] arrival, [his] discussions with Acting

Supervisor Ehresman and Agent Lands, and [his] review of Mr. Rynearson’s documents). Yet

Mr. Rynearson has been given no opportunity to test the veracity of Defendant Lands and Perez’s

assertions as to what actions they took, when they took them, and how long they took, or to

inquire as to additional detail not set forth in their declarations, through depositions of the

Defendants or discovery of additional witnesses or other evidence, such as records of

identification checks run through relevant databases. Summary judgment is plainly premature

when Mr. Rynearson has been deprived of any opportunity to discover relevant, material facts,

and he has at the very least met the standard for a continuance under Fed. R. Civ. P. 56(d).

10. Although Defendants claim that communication was impeded due to wind noise,

Defendants’ Exhibit A, page 3) the video exhibit does not reflect such noise and Mr. Rynearson

has had no opportunity to further investigate it through depositions of Defendants or interviews

with other individuals who were present. Regardless, there was a continuous exchange of

information uninterrupted by the window not being fully rolled down. See defendants video

Exhibit D.

11. Relevant discovery also includes depositions of Lands and Perez and request for

production to ascertain whether U.S. Border Patrol agents instructed that they have the right to

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DECLARATION OF RANDALL KALLINEN Page 5

order an individual out of his vehicle; what is the training on failure to respond to questions;

what is the training on extending detention when one can communicate and ascertain all

necessary facts and when Border Patrol agents can further detain an individual.

12. On the conspiracy claim, Defendants have made several assertions, but Mr.

Rynearson has had no opportunity to test the veracity of those statements by deposition or

requests for production of Lands and Perez nor has Mr. Rynearson been able to interview or

investigate the newly-identified witness, Supervisory Agent Supervisor Ehresman.

13. Plaintiff is entitled to discovery on these matters relevant to the Bivens claims of

Unreasonable Search and Seizure issues prior to a ruling on summary judgment or motion to

dismiss.

14. On September 22, 2012 plaintiff’s counsel Randall Kallinen attempted to move

forward with the a meeting to confer prior to filing the materials pursuant to the scheduling and

planning meeting by e-mail request to Harold Brown, attorney for defendants.

Harold Brown counsel for defendants e-mailed back September 22, 2012 stating:

“There is no need to confer since I have moved to stay discovery and scheduling

order recommendations on behalf of the United States. I’ll be doing the same for

the Agents on Monday. Please read the Court’s order mooting the motions. I have

leave to refile them and that is what I am doing. Should the Court deny the

motions, I’ll take an interlocutory appeal.”

15. I declare under penalty of perjury that the foregoing is true and correct.

Executed on: October 15, 2012. /s/ Randall L Kallinen

Randall L Kallinen

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 1

IN THE 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 )(

CAPTAIN RAUL PEREZ, INDIVID., )(

)(

Defendants. )(

PLAINTIFF’S RESPONSE TO MOTION TO DISMISS ALL CLAIMS ASSERTED

AGAINST DEFENDANTS BORDER PATROL AGENT JUSTIN K. LANDS AND

SUPERVISORY AGENT RAUL PEREZ

TO THE HONORABLE JUDGE OF THE COURT:

NOW COMES Plaintiff Rynearson, by and through the undersigned attorney, and

respectfully files a response to MOTION TO DISMISS ALL CLAIMS ASSERTED AGAINST

DEFENDANTS BORDER PATROL AGENT JUSTIN K. LANDS AND SUPERVISORY

AGENT RAUL PEREZ and will show the following:

CONCISE STATEMENT OF THE REASONS FOR OPPOSITION

Plaintiff has set out a prima facie case of a Bivens action against Lands and Perez due to a

lengthy seizure and, therefore, dismissal is not warranted. See City of Indianapolis v. Edmond,

531 U.S. 32 (2000); United States v. Machuca-Barrera, 261 F.3d 425 (5th Cir.2001).

INTRODUCTION

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 2

Defendants detained Mr. Rynearson for approximately thirty-four minutes for no purpose

other than a suspicionless immigration status check.1 Throughout the purportedly immigration-

related inspection of Mr. Rynearson, Defendants were able to, and did, inquire into and

investigate matters unrelated to immigration status. Defendants do not dispute that Mr.

Rynearson has sufficiently stated a claim that this extended detention far exceeded the reasonable

scope of a brief suspicionless detention to check immigration status. And genuine disputes of

material fact preclude the conclusion that no reasonable jury could find Defendants’ extended

seizure of Mr. Rynearson unreasonable, or at the very least Mr. Rynearson is entitled to a

continuance for discovery probative of material elements of his claims, as requested under a

separate motion. Finally, Mr. Rynearson has adequately pleaded claims for conspiracy and

supervisory liability, and summary judgment on those claims is likewise premature.

A. Constitutional Framework

The Fourth Amendment guarantees “the right of the people” to be free from

“unreasonable searches and seizures.” U.S. Const., Amend. 4. “A search or seizure is ordinarily

unreasonable in the absence of individualized suspicion of wrongdoing.” Indianapolis v.

Edmond, 531 U.S. 32, 37 (2000). The Supreme Court has approved a narrow exception to this

rule for “brief questioning routinely conducted at permanent checkpoints” related to immigration

status. United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976) (emphasis added). “[A]ny

further detention . . . must be based on consent or probable cause.” Id. (internal quotation marks

omitted; alteration in original).

1 Plaintiff incorporates by reference Plaintiff’s First Amended Complaint and all the facts

asserted as if fully set forth herein.

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 3

“To determine the lawfulness of a stop,” the analysis must “ask whether the seizure

exceeded its permissible duration.” United States v. Machuca-Barrera, 261 F.3d 425, 432 (5th

Cir. 2001). The “scope of the stop … determine[s] its permissible duration.” Id. The scope of a

checkpoint stop is limited to determining “the citizenship status of persons passing through the

checkpoint,” and the permissible duration “is therefore the time reasonably necessary to

determine the citizenship status of the persons stopped.” Id. at 433. 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.” Id. A stop of “a couple of minutes” is “within the permissible duration of

an immigration checkpoint stop.” Id. at 435.

Border patrol officers may “ask questions outside the scope of the stop,” but they may do

so “only so long as such questions do not extend the duration of the stop.” Machuca-Barrera,

261 F.3d at 432. Moreover, while “the Constitution does not forbid law enforcement officers

from asking,” an individual is “under no obligation to answer the questions.” United States v.

Shabazz, 993 F.2d 431, 437 (5th Cir. 1993); see also Berkemer v. McCarty, 468 U. S. 420, 439-

440 (1984) (“[T]he officer may ask the [investigative stop] detainee a moderate number of

questions to determine his identity and to try to obtain information confirming or dispelling the

officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's

answers provide the officer with probable cause to arrest him, he must then be released.”).2 A

2 In Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177 (2004), the Supreme

Court made a limited, narrow exception to this rule, holding that the Fourth Amendment does not

preclude a State from requiring, through some separate positive law, an individual to identify

himself when stopped based on reasonable suspicion of wrongdoing. Id. at 187-188. That

narrow exception is inapplicable here.

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 4

citizen’s exercise of his rights provides no basis for further detention. See id.; Florida v. Bostick,

501 U.S. 429, 437 (1991) (“We have consistently held that a refusal to cooperate, without more,

does not furnish the minimal level of objective justification needed for a detention or seizure”);

see also Machuca-Berrerra, 261 F.3d at 435 n.38 (“[I]t would make a mockery of the reasonable

suspicion and probable cause requirements if citizens' insistence that searches and seizures be

conducted in conformity with constitutional norms could create the suspicion or cause that

renders their consent unnecessary.” (internal quotation marks omitted)). Nor does a person’s

non-inculpatory speech, however offensive or indelicate, justify extended detention. Cf. Houston

v. Hill, 482 U.S. 451, 462-463 (1987) (“The freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest is one of the principal characteristics by

which we distinguish a free nation from a police state.”).

Furthermore, a seizure extends beyond its permissible scope, and therefore violates the

Fourth Amendment, when law enforcement fails to “diligently pursue[] a means of

investigation.” United States v. Macias, 658 F.3d 509, 522 (5th Cir. 2011) (holding that police

officer “violated [individual’s] Fourth Amendment rights” when he asked questions “unrelated to

the purpose and itinerary of the trip” which “d[id] not demonstrate that he diligently pursued a

means of investigation that was likely to confirm or dispel [his suspicion] quickly.” (internal

quotation marks omitted; second alteration in original)). Indeed, even if “the officers have not

completed and continue to pursue investigation of the matters justifying its initiation,” a seizure

“may be of excessively long duration” and unconstitutional. Shabazz, 993 F.3d at 437. The

Fourth Amendment is violated when a seizure extends by even a few minutes beyond its justified

duration. United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000) (three minutes).

B. Factual Background

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 5

Pursuant to Local Rule CV-7(d)(1), the facts are more fully set forth in the Facts

Appendix. In short, however, Mr. Rynearson was detained for approximately thirty-four (34)

minutes purportedly for a routine immigration checkpoint stop. Pl. App. ¶ 35; Pl. live complaint,

para. 16. Mr. Rynearson was not asked any questions related to his immigration status until over

ten minutes into the stop, and then only when Mr. Rynearson prompted that questioning by

offering (without request) his passport. Pl. App. ¶ 22; Pl live complaint, para. 10. Defendant

Lands did not respond to the offer of a passport or request that other identification be physically

handed over. Pl. App. ¶¶ 13-14, 22. Pl live complaint, para. 10. During the ten-minute time that

Defendant Lands made no inquiries as to immigration status, he inquired regarding information

on unrelated topics, such as Mr. Rynearson’s military status and duty location. Pl. App. ¶ 13; Pl

live complaint, para. 13. Mr. Rynearson answered every question that Defendant Lands asked

and Defendant Lands quickly obtained requested information simply by asking once. E.g., Pl.

App. ¶¶ 13, 22; Pl. live complaint, para. 17. Defendant Perez was in possession of Mr.

Rynearson’s two passports, approximately seventeen minutes into the seizure. Pl. App. ¶ 26.

The seizure continued for more than fifteen minutes thereafter. Pl. App. ¶¶ 34-35. During that

time, Defendant Perez spent at least ten to fifteen minutes confirming Mr. Rynearson’s military

status. Pl. App. ¶ 36.

In addition to those undisputed facts identified by Defendants, Def. Mot. 6-7, it is

undisputed that the sole justification for the seizure and extended detention of Mr. Rynearson was

“for the purpose of conducting an immigration inspection.” Def. Ex. A, at 3.3 Mr. Rynearson

3 Defendant Lands asserts that he subjectively held suspicion that Mr. Rynearson “was a

decoy” used by drug smugglers and that Mr. Rynearson had “drugs hidden in the door

compartment.” Def. Ex. A, at 5. The drug-detection dog was run against Mr. Rynearson’s car,

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 6

agrees, moreover, that Defendants’ Exhibit D “depicts most,” but not all, “of the events of March

18, 2010.” Def. Mot. 7.4

ARGUMENT and AUTHORITY

I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS PREMATURE AND

BARRED BY GENUINE DISPUTES OF MATERIAL FACT

Defendants do not contend that Mr. Rynearson’s complaint fails to state a claim against

both Defendant Lands and Defendant Perez for violations of the Fourth Amendment under Fed.

R. Civ. P. 12(b)(6). Rather, Defendants contend they are entitled to summary judgment on those

claims on the ground of qualified immunity. The qualified immunity analysis has two parts: (1)

whether the facts alleged, “[t]aken in the light most favorable to the party asserting the injury, …

show the officer’s conduct violated a constitutional right,” Saucier v. Katz, 533 U.S. 194, 201

(2001), overruled in part on other grounds, Pearson v. Callahan, 555 U.S. 223 (2009); and (2)

whether “the right was clearly established.” Id.

Defendants make no argument that the second prong of the qualified immunity analysis is

at issue, with good reason. It has long been clearly established that a government agent violates

the Fourth Amendment when he extends the duration of an immigration checkpoint seizure

and did not alert, before Mr. Rynearson was even directed to secondary. See Pl. App. ¶ 10; see

also Def. Ex. B, at 2. In any event, Defendant Lands declares that he conducted solely an

immigration detention, Def. Ex. A, at 3, and Defendants make no argument that the extended

detention was justified on any other basis. 4 Defendants note that “there appears to be some editing of the video.” Def. Mot. 10.

The video represented by Defendant’s Exhibit D was taken from two of the five cameras that

recorded the incident, and was edited insomuch as was required to combine footage from two

cameras into one video, to protect the identity of Mr. Rynearson, and to meet YouTube upload

requirements. See Pl. App. ¶ 37. Defendants raise no point on which they contend the video is

inaccurate. Defendants will, of course, have the opportunity to request the raw video from all

five cameras, which has better video and audio quality, during discovery.

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 7

beyond what is reasonable for a brief inquiry into immigration status, Martinez-Fuerte, 428 U.S.

at 566; when he fails to diligently pursue the purpose justifying the stop, United States v. x, 382

F.3d 500, 511 (5th Cir. 2004) (en banc); and when he extends the stop beyond a permissible

duration in order to inquire into matters unrelated to the justification for the seizure, Machuca-

Barrera, 261 F.3d at 432. Defendants’ claim, rather, is that, taking the evidence in the light most

favorable to Mr. Rynearson, no reasonable jury could conclude that Defendants violated the

Fourth Amendment. See Def. Mot. 9. Accordingly, the standard and procedures for review of

Defendants’ motion are no more solicitous of the government’s interest in speedy resolution than

the familiar standard for summary judgment. Cf. Johnson v. Jones, 515 U.S. 304, 319–20 (1995)

(no interlocutory appeal available for fact-based denial of summary judgment on qualified

immunity defense).

Under the familiar standard, a movant is entitled to summary judgment only if "the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Equal Emp. Opportunity Comm'n v. WC&M

Enters., 496 F.3d 393, 397-98 (5th Cir. 2007) (citing Fed. R. Civ. P. 56). “An issue is material if

its resolution could affect the outcome of the action.” Terrebonne Parish Sch. Bd. v. Columbia

Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). A genuine issue of material fact exists when the evidence is such

that, viewing the record as a whole, a reasonable jury could return a verdict for the non-moving

party. Dediol v. Best Chevrolet, Inc. 655 F.3d 435, 439 (5th Cir. 2011). In reviewing a summary

judgment motion, the court must “refrain from making credibility determinations or weighing the

evidence,” WC&M, 396 F.3d at 398, and must view the facts in the light most favorable to the

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 8

non-moving party and draw all reasonable inferences in its favor, id.; see also Anderson, 477

U.S. at 249-52 (noting that summary judgment is inappropriate if the evidence is such that

disputed issues can be resolved in favor of either party). If the nonmovant presents a factual

controversy by asserting facts at odds with the movant, then summary judgment may not be

granted. Olabisiomotosho v. Houston, 185 F.3d 521, 525 (5th Cir. 1999).

A. Defendants’ Pre-Answer, Pre-Discovery Motion Must Be Denied As Premature

Summary judgment should not “ordinarily be granted before discovery has been

completed,” particularly where a party is “seeking not additional discovery, but discovery at all.”

Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 353 (5th Cir. 1989). Indeed, even in qualified

immunity cases, discovery may proceed once “the plaintiff's pleadings assert facts which, if true,

would overcome the defense.” Vander Zee v. Reno, 73 F.3d 1365, 1368-1369 (5th Cir. 1996). As

noted above, Defendants do not claim that Mr. Rynearson’s First Amended Complaint has failed

to state a valid claim. Pursuant to Fed. R. Civ. P. 56(d), Mr. Rynearson requires discovery—of

which there has been none—in order to “present facts essential to its opposition.” Id.

Accordingly, Mr. Rynearson requests that Defendants’ motion be denied as premature. In

addition, by separate motion, Mr. Rynearson has requested a continuance for discovery pursuant

to Fed. R. Civ. P. 56(d).

Whether Defendants acted diligently in confirming Mr. Rynearson’s immigration status,

and whether they extended the detention beyond the reasonable scope for an immigration stop in

order to investigate unrelated matters are both material to Mr. Rynearson’s claims. See Macias,

658 F.3d at 522; Machuca-Barrera, 261 F.3d at 432. The full facts that Mr. Rynearson expects to

be able to establish through discovery are set forth fully in Mr. Rynearson’s separate motion for

continuance. As just one example of the circumstances laid out in the motion, Mr. Rynearson is

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 9

entitled to probe through discovery the extent of “military status” matters that Defendant Perez

investigated. Although Defendant Perez’s declaration states that he concluded his investigation

into that topic with his conversation with Capt Dinesen, Def. Ex. F, at 2, other evidence indicates

that he also called Mr. Rynearson’s commanding officer, Lt Col Nesmith, see Pl. Ex. B, at 2.5

B. Genuine Disputes Regarding Material Facts Preclude Summary Judgment

Defendants argue that they are entitled to judgment as a matter of law for two reasons.6

First, they contend that approximately the first fifteen minutes of the extended detention is

attributable to Mr. Rynearson’s purported failure to cooperate with Defendant Lands. Def. Mot.

5 Mr. Rynearson is not at this time offering this exhibit for the truth of the matter asserted

therein, but simply to illustrate that there are fruitful avenues of inquiry with respect to the extent

and purpose of Defendant Perez’s investigation into Mr. Rynearson’s military status. 6 Defendants respond to a claim Mr. Rynearson has not made when they argue that

referral to secondary, in and of itself, requires no reasonable suspicion. Def. Mot. 12-13. What

Mr. Rynearson’s live complaint alleges is that there was “no legal reason to extend the stop”

through the direction to report to secondary. First Am. Compl. ¶ 9. Defendants misread

Martinez-Fuerte when they contend that referral to secondary generally allows a longer

detention. See Def. Mot. 12. Under the law of this Circuit, “a referral to secondary does not

increase the permissible length of the stop, except perhaps to the extent that relocating the car to

secondary consumes time.” Machuca-Barrera, 261 F.3d at 435 n.32 (emphasis added). Mr.

Rynearson concedes that Defendants may add the less than fifteen seconds required to drive to

secondary to the permissible duration of the stop—but it generally gives them no greater leeway.

Likewise, Defendants’ repeated invocation of Mr. Rynearson’s purported belief about a need for

reasonable suspicion to direct a vehicle to secondary, e.g. Def. Mot. 12, 14, is both incorrect and

irrelevant. It is incorrect because Mr. Rynearson’s belief accurately reflected that the agents

needed reasonable suspicion to detain him—meaning beyond the brief immigration checkpoint

inquiry, regardless of location. See Pl. App. ¶ 20. And Mr. Rynearson’s subjective intent has no

bearing on the reasonableness of the duration of the seizure in any event, although Defendants’

facts are again controverted when they claim Mr. Rynearson “set out to bait” the agents, Def.

Mot. 10. On the contrary, Mr. Rynearson installed the cameras because of repeated incidents in

which border patrol officers violated his constitutional rights, as well as another interaction with

unconstitutional law enforcement. Pl. App. ¶ 8. Finally, even if Mr. Rynearson had exhibited an

incorrect understanding of the law, so, too, did Defendant Lands, who repeatedly claimed that he

could further detain Mr. Rynearson based on “mere suspicion,” see Pl. App. ¶ 24—the standard

applicable at the actual border, not at interior checkpoints within the United States, see Pl. Ex. C,

at 2.

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PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 10

14-15. Second, they contend that the additional fifteen-plus minutes Mr. Rynearson was detained

after the arrival of Defendant Perez was justified by the need for Defendant Perez to take “extra

care” to ascertain that Mr. Rynearson “was in the United States lawfully.” Def. Mot. 16. Their

arguments depend upon disputed facts and are wrong on the law.

First, Defendants’ argument regarding Mr. Rynearson’s purported uncooperativeness

depends upon facts that are in dispute and controverted. For example, Defendants claim (Mot.

14-15) that: (i) Mr. Rynearson made a telephone call while Defendant Lands was speaking with

him; (ii) Mr. Rynearson “refused to cooperate with questioning.”; (iii) Mr. Rynearson “believed

that he could insist that Agent Lands explain the reasons for his detention … before the

inspection could proceed”; and (iv) that Defendant Lands “repeatedly requested that [Mr.

Rynearson] roll down his window so [Defendant Lands] could speak with him and examine his

documents.” As to (i): Mr. Rynearson did not make any telephone calls while Defendant Lands

was speaking with him. See Pl. App. ¶¶ 15, 17. As to (ii): Mr. Rynearson answered every single

question he was asked except for Defendant Perez’s question about Mr. Rynearson’s

commanding officer. See, e.g., Pl. App. ¶¶ 10, 13, 22, 26, 29, 30. As to (iii): Mr. Rynearson

neither held, nor expressed, a belief that the inspection could not proceed absent some

explanation from Defendant Lands. See Pl. App. ¶ 12. Mr. Rynearson did hold the belief that if

Defendant Lands explained his reasonable suspicion, then Mr. Rynearson would consent to

Defendant Lands’ request that he exit the vehicle, in order to allow a search (which Mr.

Rynearson understood to be the purpose of exiting the vehicle), but was cut off when explaining

this to Defendant Lands. Pl. App. ¶ 20. Moreover, the investigation did proceed, and Mr.

Rynearson furthered it by answering questions, providing identification, and offering his

passport. See Pl. App. ¶¶ 10, 13, 22, 26, 29.

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As to (iv)—Defendant Lands’ claimed repeated requests for Mr. Rynearson to roll down

his window: Defendant Lands did not once request that Mr. Rynearson roll down the window in

order for Defendant Lands to examine Mr. Rynearson’s identification. Pl. App. ¶ 14. Nor did he

request to physically inspect Mr. Rynearson’s identification, or ask that Mr. Rynearson physically

hand him the identification. Id. All Defendant Lands asked was to “inspect” the identification,

which Defendant Lands did by shortly thereafter writing down information and running the

identification through a database. See Pl. App. ¶¶ 13-14, Def. Mot. 15. Rather than request that

Mr. Rynearson physically provide his identification, Defendant Lands began questioning Mr.

Rynearson regarding his military status. Pl. App. ¶ 13. When a border patrol agent did ask Mr.

Rynearson to physically provide his identification, Mr. Rynearson did so immediately. See Pl.

App. ¶ 26.

Mr. Rynearson agrees that after reaching secondary and rolling up his window, he did not

consent to the request that he roll down the window for approximately nine minutes. See Pl.

App. ¶¶ 12, 19. He did, however, partially roll down his window about ten minutes into the

detention, and it was partially rolled down throughout the remainder of the time that he interacted

with the agents, see Pl. App. ¶ 26—contrary to Defendants’ suggestion (Def. App. 5) that he

rolled it down only upon the request of Defendant Perez. Although Defendants claim that

communication was impeded due to wind and traffic noise, see Def. Ex. A, at 7, Def. Ex. B, at 3,

the video indicates no such noise and Mr. Rynearson has had no opportunity to further investigate

it through depositions of Defendants or interviews with other individuals who were present.

Regardless, there was a continuous exchange of information uninterrupted by the window not

being fully rolled down.

Mr. Rynearson also agrees that he did not exit his vehicle. But Defendant Lands dropped

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that request less than three minutes into the detention and did not renew it for the remaining

thirty-plus minutes that Mr. Rynearson was seized. Pl. App. ¶ 13.7 Moreover, as discussed

above, there is a genuine dispute of fact as to whether communication was impeded during this

time, and it is not standard practice for individuals to be required to roll down their windows

fully or exit their vehicles during a routine immigration check, see Pl. App. ¶ 34 (statement by

Defendant lands to Mr. Rynearson that “[Y]ou don’t have to, I understand you may not want to

roll [the window] all the way down but at least enough that we can communicate”).8

Second, Mr. Rynearson agrees that this Court needs not accept assertions that are flatly

contradicted by the video evidence, Scott v. Harris, 550 U.S. 372, 380 (2007), and accordingly

7 Defendants can make no claim that Mr. Rynearson’s failure to exit the vehicle upon

request justified the extended detention. Defendant Lands, by his own declaration, simply

requested that Mr. Rynearson do so, see Def. Ex. E, at 2, and a citizen’s failure to acquiesce in a

request cannot justify a prolonged detention, see Machuca-Barrera, 261 F.3d at 435 n.38.

Although law enforcement may order a suspect out of a vehicle during a suspicion-based traffic

stop, Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), Defendants claim no such

authority or order and none is available to them. The particular circumstances of roadside

suspicion-based stops that justified such an order, see id. at 110-11, are not present when an

individual is detained on the basis of no individual suspicion whatsoever, and such a request

extends the brief immigration stop far beyond its approved scope. 8 Defendants make several other claims that are without basis or otherwise controverted.

For example, Defendants assert that Mr. Rynearson “attempt[ed] to intimidate Agent Lands” and

“lied to Agent Lands” by purportedly informing Defendant Lands that the FBI “advised [Mr.

Rynearson] that he could be detained only on reasonable suspicion.” Def. Mot. 14. Mr.

Rynearson asked the FBI to confirm that reasonable suspicion was required to search his vehicle,

Pl. App. ¶ 17, and then informed Defendant Lands of his understanding with regard to a search,

Pl. App. ¶ 19—which is in fact incorrect because more (probable cause) is required. Mr.

Rynearson likewise did not lie to the FBI and state that the agents were “threatening” him, Def.

App. 7; he told the FBI “I feel threatened, and I don’t know why they’re doing what they’re

doing,” Pl. App. ¶ 18, and “they’re threatening, I mean they have weapons, and they’re not telling

me anything and they want me to exit my vehicle as though they expected me to come through

here,” Pl. App. ¶ 18. Regardless, Defendants make no argument as to why this is relevant to the

scope of the detention or its duration, and it is not. It merely corroborates that Mr. Rynearson,

through repeated experiences of unconstitutional conduct at the checkpoint, was genuinely

concerned and uncertain regarding what Defendants were trying to do to his person and property

through their extended detention of him.

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this Court should not accept, inter alia, Defendants’ assertion that Defendant Lands “was never

given the opportunity to question Mr. Rynearson or examine his documents,” Def. App. 3;

Defendant Lands’ declaration that he “advised [Mr. Rynearson] that he needed to physically

inspect” Mr. Rynearson’s identification, Def. Ex. A, at 4; or Defendant Lands’ declaration that his

“involvement with the incident was over” once Defendant Perez arrived on the scene, Def. Ex. A,

at 6. The video evidence shows: Defendant Lands had the opportunity to, and did, question Mr.

Rynearson throughout the encounter. See Pl. App. ¶ 10 (questions regarding Mr. Rynearson’s

vehicle ownership); id. ¶ 13 (questions regarding Mr. Rynearson’s military status); id. ¶ 22

(question regarding Mr. Rynearson’s immigration status). That Defendant Lands did not ask a

single question regarding immigration status until ten minutes into the encounter was by his

choice. And the video demonstrates that Defendant Lands did not advise Mr. Rynearson

regarding the need to physically inspect his documents. Pl. App. ¶ 14. Finally, the video shows

that Defendant Lands was involved in Mr. Rynearson’s detention after Defendant Perez’s arrival

on the scene. Pl. App. ¶ 34.

Third, Defendants misread the law in arguing that a thirty-four minute detention does not

exceed the reasonable scope of an immigration checkpoint detention if an individual is not

cooperative. As an initial matter, the Fourth Amendment does not demand a detained

individual’s “cooperation” with the investigation, even when the stop is based on reasonable

particularized suspicion of wrongdoing. Berkemer, 468 U. S. at 439-440; Shabazz, 993 F.2d at

437. Martinez-Fuerte authorizes brief stops to inquire as to immigration status, 428 U.S. at 566,

just as Terry v. Ohio allows brief detentions to investigate where there is reasonable suspicion.

As law enforcement cannot extend a suspicion-based investigative seizure until a defendant

cooperates, see Berkemer, 468 U. S. at 439-440, then a fortiori Martinez-Fuerte does not

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authorize prolonged detention without any individual suspicion until a border patrol agent is

subjectively satisfied with a citizen’s cooperation, regardless of the agent’s failure to claim (much

less establish) reasonable suspicion based on objective facts that immigration status is lacking. It

bears repeating, however, that Mr. Rynearson answered every question that Defendant Lands

posed (and every relevant question that Defendant Perez posed), and the Defendants understood

every answer, notwithstanding the asserted (but disputed) wind noise or difficulty

communicating, through a window that was rolled up for less than one-third of the stop.

Defendants’ reliance upon United States v. Sharpe, 470 U.S. 675 (1985), is misplaced.

First, the action of the suspect in Sharpe was to fail to stop when signaled to do so by law

enforcement, id. at 678—which an individual indisputably has no right to do. Not so here. As

discussed above, the Fourth Amendment imposes no obligation to cooperate with the

government’s investigation, even assuming Mr. Rynearson was uncooperative, which he was not.

Moreover, even where an individual acts unlawfully—and so disrupts an investigation that by his

evasion he requires law enforcement officers to make two separate traffic stops at two separate

locations—law enforcement still may not justify an extended stop unless the agents acted

diligently. Id. at 688 (“We reject the contention that a 20-minute stop is unreasonable when the

police have acted diligently and a suspect's actions contribute to the added delay about which he

complains.” (emphasis added)). Only where the seizure “does not involve any delay unnecessary

to the legitimate investigation of the law enforcement officers” and the detained person

“presented no evidence that the officers were dilatory in their investigation” is a seizure

reasonable under the Fourth Amendment. Id. at 687; see also Macias, 658 F.3d at 519 (holding

detention unreasonable when eight minutes of unrelated questioning elapsed before police officer

began to run driving-related computer checks in a traffic stop).

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Genuine disputes of material fact—and the need for additional discovery—preclude this

Court from concluding that no reasonable jury would find defendants non-diligent where, inter

alia, summary judgment evidence (i) controverts that Defendant Lands was unable to

communicate, see, e.g., Pl. App. ¶¶ 10, 13, 22; (ii) supports that Lands was able to, and did,

inquire and learn about irrelevant matters, such as Mr. Rynearson’s military status, see Pl. App.

¶ 13; (iii) supports that Defendant Lands asked no questions related to immigration status until

more than ten minutes into the stop, see Pl. App. ¶ 22; (iv) supports that Defendants, with no

explanation, called an off-site supervisor when an on-site supervisor was available and adding

approximately ten to fifteen minutes to the detention, see Pl. App. ¶ 36; (v) controverts that the

detention was reasonably necessary to ascertain immigration status when Defendant Lands states

that record checks take a couple of minutes and Defendants detained Mr. Rynearson for more

than fifteen minutes beyond the time that they were in possession of identification documents,

see Pl. App. ¶¶ 26, 36; and (vi) supports that Defendants detained Mr. Rynearson for an

additional ten to fifteen minutes, and for an unknown length of time beyond the conclusion of the

records check in order to ascertain his military status, see Pl. App. ¶ 36.

Defendants’ novel theory of “evasive[ness],” Def. Mot. 15, amounts to a reversal of the

diligence burden, imposing upon the citizen—without prompting or questioning— the obligation

to diligently satisfy the unarticulated demands of law enforcement or be detained. When asked,

Mr. Rynearson immediately physically provided his identification. See Pl. App. ¶ 26. When

asked, Mr. Rynearson answered every question related to immigration status and all but one of

the irrelevant ones. See, e.g., Pl. App. ¶¶ 10, 13, 22, 26, 29, 30. Prolonged detention is not

justified by Mr. Rynearson’s failure to physically hand over his identification, unprompted; to

declare his citizenship, unprompted; or to comply with unnecessary—and abandoned—requests

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when communication and investigation continued unimpeded. It is the government that must

diligently pursue the reason for seizing the citizen or let him go. See Macias, 658 F.3d at 522.

Finally, even under Defendants’ version of the facts, and even if their suspicionless-

detention-until-cooperation-is-subjectively-achieved legal theory stands, Mr. Rynearson’s

purported uncooperativeness ended long before the seizure did. More than fifteen minutes prior

to ending the detention, Defendant Perez was in physical possession of a tourist passport and an

official passport. Pl. App. ¶ 26. Although Defendants make the bare assertion that Mr.

Rynearson was “evasive” with Defendant Perez, Def. Mot. 10, that assertion is entirely without

basis or is controverted. Mr. Rynearson had long since rolled his window partially down when

Defendant Perez approached. See Pl. App. ¶¶ 19, 26. Mr. Rynearson repeatedly called Defendant

Perez “sir.” Pl. App. ¶¶ 26-27. Mr. Rynearson complied with every request and answered every

question from Defendant Perez except for the one irrelevant question regarding the name of his

commanding officer, see Pl. App. ¶ 30, which the law does not require Mr. Rynearson to answer,

Shabazz, 993 F.2d at 437.

And Mr. Rynearson’s conduct in his brief conversation with Defendant Perez does not, in

any event, bear on the reasonableness of Defendants continuing to detain Mr. Rynearson for more

than fifteen minutes more after Defendant Perez had Mr. Rynearson’s passports. The majority of

Defendant Perez’s investigation took place away from Mr. Rynearson’s vehicle. See Pl. App. ¶¶

31, 33. As discussed in Section I.A., without any discovery to probe the details and veracity of

Defendant Perez’s assertions as to what he was doing during the relevant time, Mr. Rynearson is

deprived of the opportunity to establish the length and content of Defendant Lands’ dilatory

conduct with precision. But according to Defendant Lands, running a person’s identification

takes “a couple of minutes,” Def. Ex. A, at 4, and according to Defendants, Defendant Lands had

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already begun checking Mr. Rynearson’s identification information “against electronic databases”

at the time he summoned Defendant Perez, Def. Mot. 15, who took approximately ten to fifteen

minutes to arrive, Pl. App. ¶ 36. Accordingly, assuming arguendo that it would have been

reasonable, for the purpose of inquiring into Mr. Rynearson’s citizenship status, to extend the

detention beyond the already extraordinary fifteen minutes in order to run (or re-run) Mr.

Rynearson’s identification, there is a genuine dispute of material fact as to whether the additional

more than fifteen minutes of detention extended the seizure long past the time reasonably

necessary for that purpose. Defendant Perez states that it took him ten to fifteen minutes to call

Laughlin AFB and verify Mr. Rynearson’s “military status” through a discussion with Capt

Dinesen, Def. Ex. F, at 2—a fact that even Defendant Lands appears to agree is irrelevant to Mr.

Rynearson’s immigration status, see Pl. App. ¶ 21 (Defendant Lands informing Mr. Rynearson

that his military identification “doesn’t mean anything” as it is not an “immigration

document[]”). Given that none of this time can be laid at Mr. Rynearson’s feet—even assuming

arguendo that any of the detention could—no amount of “extra care,” Def. Mot. 16, reasonably

justifies detention extending for more than twenty minutes beyond the time that Mr. Rynearson

(unprompted) offered Defendant Lands a passport, for more than fifteen minutes after Defendant

Perez held two passports in his hand, and for the ten to fifteen minutes that Defendant Perez

devoted to ascertaining information irrelevant to immigration status.

II. PLAINTIFF HAS ADEQUATELY PLEADED CLAIMS FOR SUPERVISORY

LIABILITY AND CONSPIRACY

When reviewing a motion to dismiss, the Court accepts “all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Capital Parks, Inc. v. Southeastern

Advertising & Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir. 1994); Fernandez-Montes v. Allied

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Pilots Ass’n, 987 F.2d 278, 284-85 (5th Cir. 1993); Lindquist v. Pasadena, 525 F.3d 383, 386 (5th

Cir. 2008). Plaintiff must plead “only enough facts to state a claim to relief that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “Factual allegations must be

enough to raise a right to relief above the speculative level, on the assumption that all allegations

in the complaint are true (even if doubtful in fact)”, and the Court should deny a motion to

dismiss even if it appears “that a recovery is very remote and unlikely.” Id. at 1965 (internal

citation and footnote omitted). Mr. Rynearson’s supervisory liability and conspiracy claims meet

this standard. Pl live complaint, para. 12 - 15.

The Supreme Court unanimously, expressly, and repeatedly has rejected a “heightened

pleading standard” in the analogous context of 42 U.S.C. § 1983 cases against municipal

governments. In a recent case reversing dismissal (which also challenged medical care in

prison), the Supreme Court reaffirmed that “[s]pecific facts are not necessary; the [Complaint]

need only ‘give the defendant fair notice of what the … claim is and the grounds upon which it

rests.’” Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam) (quoting Bell Atlantic, 127

S.Ct. at 1964) (additional citations omitted). Mr. Rynearson’s live complaint easily meets the fair

notice requirement of a claim for supervisory liability under this standard.

Supervisory liability must rest upon a supervisor’s individual misconduct. Ashcroft v.

Iqbal, 556 U.S. 662, 677 (2009). But such individual misconduct includes the failure to train and

supervise.9 By seeking dismissal because of an alleged lack of details than those already in the

9 Defendants declare that Defendant Perez was not the on-site supervisor of Defendant

Lands. See Def. Ex. A, at 6. First, this is summary judgment evidence inappropriate for a

motion to dismiss and Mr. Rynearson has had no opportunity for discovery to test the veracity of

this assertion. Second, the fact that Defendant Perez was responsible for a somewhat larger

geographic area does not make him any less responsible for directing the agents’ actions at the

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live complaint, Defendants’ motion to dismiss requests this Court to impose a heightened

pleading requirement that, in the analogous context of a 42 U.S.C. § 1983 claim against a

municipality, the Supreme Court has unanimously rejected. Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). In that case, the Fifth

Circuit had found that plaintiff “fail[ed] to state any facts with respect to the adequacy (or

inadequacy) of the police training.” 954 F.2d 1054, 1058 (5th Cir. 1992). The Supreme Court

held that such detailed assertions were not required. Leatherman, 507 U.S. at 167-68. Nothing

requires plaintiffs to “set out in detail the facts upon which he bases his claim,” and to impose

such a requirement would be “impossible to square … with the liberal system of ‘notice

pleading’ set up by the federal rules.” Id. at 168 (citation and internal quotation omitted). In Bell

Atlantic, the Court expressly reconfirmed “we do not require heightened fact pleading of

specifics, but only enough facts to state a claim to relief that is plausible on its face.” Bell

Atlantic, 127 S. Ct. at 1974.

Mr. Rynearson has likewise alleged sufficient facts to support a conspiracy claim

predicated on Defendants’ agreement to unlawfully detain and/or search Mr. Rynearson for the

purpose of harassing him and secondly Agent Lands and Agent Perez were obviously conspiring

to search people illegally for drugs as set out in the live complaint. Mr. Rynearson has alleged

that he traveled through the checkpoint on an almost weekly basis and that he was repeatedly

harassed, and sometimes searched, for his failure to answer a particular question. On these

allegations, it is not implausible that border patrol agents that regularly work the Uvalde

checkpoint, as evidenced by him being the agent consulted by Defendant Lands.

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checkpoint knew Mr. Rynearson, were aware of his prior complaint, and agreed to periodically

deprive him of his constitutional rights by detaining him longer than necessary and/or searching

him. The high level of interest of the border patrol agents with Mr. Rynearson’s military status—

including Defendant Lands’ diversion of the checkpoint investigation from inquiry into

immigration status to inquiry into military status, Defendant Perez’s extension of the seizure for

ten to fifteen minutes to contact Laughlin AFB, and Chief Harris’s letter to Mr. Rynearson’s

commander after the fact—is probative of Defendants’ intent to deprive Mr. Rynearson of his

constitutional rights for the purpose of harassing him and deterring his exercise of his rights in

the future.

In sum, Mr. Rynearson’s live complaint alleges sufficient facts to state claims for

supervisory liability and conspiracy. And, as with their motion for summary judgment on Mr.

Rynearson’s other claims, Defendants’ motion for summary judgment on these claims is

premature. Mr. Rynearson has had no opportunity, for example, to interview the newly-identified

witness to conversations regarding Mr. Rynearson, i.e. the second supervisor.

CONCLUSION AND PRAYER

WHEREFORE, premises considered, Mr. Rynearson requests that Defendants’ motion to

dismiss Mr. Rynearson’s supervisory liability and conspiracy claims be denied and Defendant’s

motion for summary judgment on all claims be denied, or that Mr. Rynearson be granted a

continuance to allow for discovery pursuant to his separate motion under Fed. R. Civ. P. 56(d)

and for all other relief in law and equity he finds himself entitled.

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RESPECTFULLY SUBMITTED,

LAW OFFICE OF RANDALL L. KALLINEN PLLC

BáB etÇwtÄÄ _A ^tÄÄ|ÇxÇ 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 77012

Telephone: 713/320-3785

FAX: 713/893-6737

E-mail: [email protected]

Attorney for Plaintiff

October 15, 2012

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document and associated

exhibits and attachments has been served upon opposing counsel as indicated below by ECF on

October 15, 2012:

Harold E. Brown, AUSA (ECF)

601 N.W. Loop 410, Suite 600

San Antonio, TX 78216 BáB etÇwtÄÄ _A ^tÄÄ|ÇxÇ

Randall L. Kallinen

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PLAINTIFF’S FACT APPENDIX Page 1

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

PLAINTIFF’S FACT APPENDIX

This fact appendix is provided pursuant to Local Rule CV-7(d)(1). References are to the

exhibits filed with the Response to Defendants’ Motion to Dismiss (Pl. Ex.) or to the exhibits

filed with Defendants’ Motion to Dismiss (Def. Ex.). The following exhibits are filed with

Plaintiff’s Response to Defendants’ Motion to Dismiss:

Plaintiff Exhibit A Declaration of Richard Rynearson, October 15, 2012

Plaintiff Exhibit B Letter from Border Patrol Chief Harris to Lt Col Richard Nesmith

Plaintiff Exhibit C Excerpt from Border Patrol Policy Manual

A. Background

1. Plaintiff, Mr. Richard Rynearson, is an officer in the United States Air Force. From

approximately May, 2007 until July, 2010, he was stationed at Laughlin AFB, near Del Rio,

Texas. Throughout the time that he was stationed at Laughlin AFB, Mr. Rynearson maintained a

house or apartment in San Antonio, Texas. Most weekends during the time that Mr. Rynearson

was stationed at Laughlin, he traveled from Del Rio to San Antonio along Highway 90 in order to

RICHARD RYNEARSON,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

BORDER PATROL AGENT LANDS,

Individually, and BORDER PATROL

AGENT CAPTAIN RAUL PEREZ,

Individually,

Defendants.

)

)

)

)

) Civil Action No.: 2:12-cv-0024-AM-CW

)

)

)

)

)

)

)

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PLAINTIFF’S FACT APPENDIX Page 2

spend the weekend in San Antonio. (Pl. Ex. A ¶ 2).

2. The United States Border Patrol operates an interior checkpoint along Highway 90

between Del Rio and San Antonio, near the town of Uvalde, Texas. Persons traveling toward

San Antonio on Highway 90 must stop at the checkpoint. (Def. Ex. A at 2).

B. Plaintiff’s Previous Experiences With The Uvalde Checkpoint

3. Because Mr. Rynearson traveled to San Antonio almost every weekend that he was

stationed at Laughlin AFB, he went through the Uvalde checkpoint on a regular basis, estimated

to be more than one hundred (100+) times during the time he was stationed at Laughlin AFB.

Mr. Rynearson was aware during this time that the Fourth Amendment allows the border patrol

agents to ask questions unrelated to the purpose of the immigration checkpoint but does not

obligate citizens to answer those questions. (Pl. Ex. A ¶ 3).

4. In November 2007, Mr. Rynearson was stopped at the Uvalde Border Patrol checkpoint

and refused to tell the agents his intended destination. The agents ordered Mr. Rynearson to

secondary, and then ordered him out of his vehicle. Mr. Rynearson complied and a U.S. Border

Patrol agent and his drug dog searched the interior of his vehicle, and the agent threw his

property, including his laptop computer, onto the pavement. The agents found no contraband,

and punitively searched Mr. Rynearson’s vehicle because he refused to answer as to his intended

destination. (Pl. Ex. A ¶ 4).

5. Following this incident, Mr. Rynearson filed a complaint with the Border Patrol

headquarters in Del Rio, Texas. (Pl. Ex. A ¶ 4).

6. On August 14, 2008, Mr. Rynearson was stopped at the Uvalde Border Patrol

checkpoint and refused to tell the agents his intended destination. An agent then ordered Mr.

Rynearson to open his trunk, and Mr. Rynearson asked the agent if he had reasonable suspicion.

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PLAINTIFF’S FACT APPENDIX Page 3

The agent then asked the dog handler if he had run the drug dog yet, but the dog handler had not.

The agent ordered Mr. Rynearson into secondary. Minutes later, an agent approached the

vehicle, said he was just making conversation, and informed Mr. Rynearson that he was the only

pilot from the base who refused to answer where he was going. (Pl. Ex. A ¶ 5).

7. In another episode in 2008 or 2009, Mr. Rynearson was stopped at the Uvalde Border

Patrol checkpoint and refused to tell the agent his intended destination. He was ordered to

secondary, asked several questions and lectured on not having respect for authority. (Pl. Ex. A ¶

6).

8. Following these incidents, where Mr. Rynearson’s exercise of his right not to answer

questions regarding his destination resulted in extended detentions and unlawful searches at the

Uvalde Checkpoint, as well as a different incident with unconstitutional law enforcement, Mr.

Rynearson decided to install cameras in his vehicle in order to ensure that his encounters with

law enforcement were recorded. (Pl. Ex. A ¶ 7).

C. The March 18, 2010 Incident

9. On March 18, 2010, Mr. Rynearson traveled alone from Del Rio to San Antonio

driving a two-door car with untainted windows and a military identification sticker on the

windshield. Mr. Rynearson wore a T-shirt with a clearly recognizable military symbol, and

approached the checkpoint with his window partially rolled down (Pl. Ex. A ¶ 8).

D. The Inspection At Primary; Referral To Secondary (Approx. 35 Seconds)

10. Mr. Rynearson stopped at the checkpoint and said to Agent Lands, “What’s going

on?” Agent Lands responded, “How’s it going today?” and Mr. Rynearson responded, “Good

how are you doing?” to which Agent Lands responded, “Doing well. Is this your vehicle, sir?”

Mr. Rynearson responded, “It is” and Agent Lands asked, “Can you roll down your window? Is

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that as far as it’ll go?” Mr. Rynearson answered, “No, it can go down more” and rolled his

window down further to demonstrate. Agent Lands asked, “What’s that?” and Mr. Rynearson

repeated, “It can go down more.” Agent Lands said, “You said this is your vehicle?” and Mr.

Rynearson confirmed, “It is, yeah.” Agent Lands asked no questions related to immigration

status. (Def. Ex. D, part 1, 00:22). A K-9 unit was run by the vehicle and did not alert. (Def.

Ex. B, at 2).

11. Agent Lands then referred Mr. Rynearson to secondary. Mr. Rynearson began driving

slowly toward secondary and asked, “Ok, can you tell me why?” and Agent Lands responded,

“Yeah, I’ll be with you in a moment, there’s a bunch of traffic over here. Go ahead and park

over here.” (Def. Ex. D, part 1, 00:35).

E. Initial Inspection At Secondary By Agent Lands (Approx. 00:35 to 4:52)

12. Mr. Rynearson parked in secondary and rolled up his window. (Def. Ex. D, part 1,

00:58). Approximately 30 seconds later, Agent Lands walked over and knocked on the window.

Agent Lands requested that Mr. Rynearson exit the vehicle, and Mr. Rynearson asked why.

Agent Lands also requested that Mr. Rynearson roll down his window, but Mr. Rynearson

declined. (Def. Ex. D, part 1, 01:30). Mr. Rynearson understood that a brief immigration related

inspection could proceed without any explanation from the agents. (Pl. Ex. A ¶ 11). But, at this

time and throughout the encounter, Mr. Rynearson was concerned that the border patrol agents

were attempting to remove him from his vehicle so that they could search his car, without any

individualized suspicion, as had happened to him in the past. (Pl. Ex. A ¶ 9).

13. Agent Lands then said, “I need to see some identification.” Mr. Rynearson responded

that he could show Agent Lands identification. Agent Lands then repeated his request for Mr.

Rynearson to exit the vehicle, and Mr. Rynearson again refused, asking why he was being

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detained. (Def. Ex. D, part 1, 01:45). Agent Lands then said, “Well, here’s what we can do.

You’re gonna need to give me your identification.” (Def. Ex. D, part 1, 2:06). Mr. Rynearson

said, “Ok,” and put his driver’s license on the window, and said, “There’s my ID.” (Def. Ex. D,

part 1, 2:09). Agent Lands said, “I need to inspect it to make sure it’s a valid ID.” (Def. Ex. D,

part 1, 2:10). Mr. Rynearson said, “Ok” and also put his military ID card on the window. (Def.

Ex. D, part 1, 2:16). Another agent standing next to Agent Lands said, “Oh, he’s in the military”

and Agent Lands asked, “You’re in the military?” Mr. Rynearson answered, “I am in the

military.” (Def. Ex. D, part 1, 2:18). Agent Lands asked, “Ok, where at, here in Del Rio?” Mr.

Rynearson answered, “Yep, in Del Rio.” Agent Lands said, “Del Rio, ok.” (Def. Ex. D, part 1,

2:21). Mr. Rynearson again asked why he was being detained, and Agent Lands responded

“Well if you’ll get out and I’ll be more than happy to explain it to you.” Mr. Rynearson declined

to exit the vehicle and Agent Lands responded “If you’re going to stay there then we’ll just do

this the hard way.” Agent Lands did not renew his request that Mr. Rynearson exit the vehicle

thereafter. (Def. Ex. D, part 1, 02:33; Def. Ex. E, at 2).

14. During this exchange, Agent Lands began copying down information from Mr.

Rynearson’s identification. (Def. Ex. D, part 1, 2:24). Agent Lands did not ask Mr. Rynearson

to hand him the identification or to physically inspect the identification. Agent Lands then

ceased conversation. An agent behind the vehicle pointed out the various cameras installed in

Mr. Rynearson’s vehicle and told another agent, “He’s got cameras all over the place.” (Def. Ex.

D, part 1, 02:57).

15. After Agent Lands ceased conversation and began copying down Mr. Rynearson’s

identification, Mr. Rynearson began making a phone call to his wife. (Def. Ex. D, part 1, 2:41).

Mr. Rynearson attempted to re-engage Agent Lands in conversation approximately 45 seconds

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after Agent Lands ceased conversation, asking why he was being detained. (Def. Ex. D, part 1,

03:23). Upon receiving no response, Mr. Rynearson left a voicemail for his wife and then again

sought to speak with Agent Lands another 45 seconds later. (Def. Ex. D, part 1, 04:06). Agent

Lands stated that he could not hear Mr. Rynearson, but continued with the conversation, stating

that “This is an immigration checkpoint.”

16. During the ensuing conversation, Agent Lands acknowledged that Mr. Rynearson

stopped at the checkpoint as required and said, “Yes, but you have to satisfy to us that you’re a

United States citizen.” Agent Lands then explained that, “Doing the things you’re doing, I don’t

believe that you’re being a United States citizen. You’re rolling down your window, you won’t

roll it down” and claimed Mr. Rynearson was “being evasive about answering [Agent Lands’]

questions.” (Def. Ex. D, part 1, 4:44). Mr. Rynearson asked, “What question did I not answer?

What question did I not answer? You asked if this was my vehicle.” Agent Lands responded, “I

didn’t say you didn’t answer, I said you were being evasive about answering.” Mr. Rynearson

asked, “How was I being evasive? To which question did I evade?” and Agent Lands responded,

“I said you were being evasive, I didn’t say you evaded the question. There is a big difference.”

Mr. Rynearson asked, “Ok, evasive how?” and Agent Lands responded, “If you’ll hang tight I’ll

be right back with you” and then Agent Lands and another agent nearby left the vicinity while

other agents remained at Mr. Rynearson’s vehicle. (Def. Ex. D, part 1, 5:07).

F. Period Of No Interaction (Approx. From 04:53 To 09:44)

17. For the next approximately five minutes, Mr. Rynearson had no interaction with any

border patrol agents. During that time, he first attempted to call his lawyer, but did not reach

him. (Def. Ex. D, part 1, 5:11). Mr. Rynearson then called an FBI office in San Antonio to

discuss what was required for the Border Patrol to search his vehicle. Mr. Rynearson explained

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that the Border Patrol was “trying to tell me that I have to roll down my window, which I don’t

want to do because they won’t tell me why they’ve pulled me into secondary.” (Def. Ex. D, part

1, 7:33). Mr. Rynearson asked the FBI agent to confirm his understanding that the Border Patrol

agents had to have reasonable suspicion to search his vehicle. The FBI agent confirmed this,

stating “exactly.” Mr. Rynearson then responded, “but they don’t have reasonable suspicion and

they won’t tell me anything.” (Def. Ex. D, part 1, 8:39). Mr. Rynearson did not tell the FBI that

he believed the agents needed reasonable suspicion to secondary him. The FBI advised Mr.

Rynearson to comply with the border patrol agents.

18. Mr. Rynearson was concerned for his personal safety and thought the agents

recognized him and intended to harass him. (Pl. Ex. A ¶ 9). Mr. Rynearson explained to the FBI,

“I have my ID up on the glass, and they’re telling me to get out of the vehicle which I’ve refused

to do, and they haven’t told me anything, I mean absolutely anything, about why they pulled me

into secondary and why they want me to exit my vehicle, and I feel threatened, and I don’t know

why they’re doing what they’re doing.” (Def. Ex. D, part 1, 7:48). Later Mr. Rynearson

explained that “they’re threatening, I mean they have weapons, and they’re not telling me

anything and they want me to exit my vehicle as though they expected me to come through here.”

(Def. Ex. D, part 1, 8:26).

G. Resumed Inspection By Agent Lands (Approx. From 09:45 To 12:52)

19. Following his call with the FBI, Mr. Rynearson asked the agents if he could talk with

someone. (Def. Ex. D, part 1, 09:53). Agent Lands returned to the vehicle window from the rear

of the vehicle. Mr. Rynearson said, “Hello. I just called the FBI and they said that if you guys

have reasonable suspicion, then you can search the vehicle and that’s my understanding, as well.”

When Agent Lands stated that he could not hear Mr. Rynearson, Mr. Rynearson rolled his

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window partially down. (Def. Ex. D, part 2, 00:15). Mr. Rynearson then asked if Agent Lands

could hear him. Agent Lands responded “Yeah,” but requested that Mr. Rynearson roll the

window down further, stating that “you gotta understand there’s a lot of traffic on this highway

so if you want to talk, crack it some more so I can hear you.” Conversation ensued in which

Agent Lands heard and responded to Mr. Rynearson. When Mr. Rynearson began to ask a

question of Agent Lands, Agent Lands stated that a supervisor was coming. (Def. Ex. D, part 2,

00:32).

20. Continuing the conversation, Mr. Rynearson said, “Ok, if you guys have reasonable

suspicion and you can tell me what that reasonable suspicion is, then I’ll comply with your

request to --.” (Def. Ex. D, part 2, 00:35). Although Mr. Rynearson was cut off before

completing his sentence, he intended to inform Agent Lands that he would comply with what he

understood to be the agents’ desire to search his vehicle if they could explain the basis for the

search. (Pl. Ex. A ¶ 10). Agent Lands then explained that the Border Patrol agents did not need

reasonable suspicion to secondary Mr. Rynearson, to which Mr. Rynearson responded that they

did need reasonable suspicion to detain him. Mr. Rynearson also explained his understanding

that the agents needed reasonable suspicion to search his vehicle, which Agent Lands denied was

the case. (Def. Ex. D, part 2, 1:07).

21. Mr. Rynearson then asked whether Agent Lands thought that Mr. Rynearson was not

an American citizen. (Def. Ex. D, part 2, 01:12). Agent Lands responded, “Well define what

that means.” Mr. Rynearson responded, “You have a military ID.” Agent Lands said, “That

doesn’t mean anything.” Mr. Rynearson pointed to his driver’s license and said, “You have this

ID.” Agent Lands said, “Those aren’t immigration documents.”

22. Having been informed that the two pieces of identification he had previously

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provided were meaningless, Mr. Rynearson then asked, “Do you want a passport?” (Def. Ex. D,

part 2, 01:22). Agent Lands did not respond to the offer. Instead, he asked, “Are you a U.S.

citizen?” Mr. Rynearson responded, “I am a U.S. citizen.” Agent Lands said, “How come you

wouldn’t answer me earlier?” and Mr. Rynearson responded, “You never asked me if I was a

U.S. citizen!” (Def. Ex. D, part 2, 01:53).

23. Agent Lands then stated that he had asked Mr. Rynearson to roll his window down at

primary, and explained that he had a difficult time hearing Mr. Rynearson at primary. He then

explained, however, that “that’s all irrelevant” and told Mr. Rynearson that he was “being

secondaried because you weren’t answering my questions.” (Def. Ex. D, part 2, 01:49). Mr.

Rynearson asked what questions he did not answer and stated that he answered all of Agent

Lands’ questions, at which point Agent Lands stated that, “Well, here’s the deal, alright, like I

said, I don’t need reasonable suspicion to secondary you for an immigration violation, that’s why

you’re being secondaried.” (Def. Ex. D, part 2, 02:06). When Mr. Rynearson asked whether

Agent Lands was saying that he violated an immigration law, Agent Lands responded that he was

not accusing Mr. Rynearson of violating an immigration law. When Mr. Rynearson asked why,

then, he was being detained, Agent Lands said, “If you’ll listen to me, we got a supervisor

coming so if you’ll just hang tight, he’ll be here momentarily and you can do whatever you need

to do, you can talk to him about it.” (Def. Ex. D, part 2, 02:20).

24. Mr. Rynearson then asked Agent Lands what he had done that justified the detention

and the conversation continued. Agent Lands stated that he had already explained that, at a

checkpoint, “all I need is mere suspicion of an immigration violation.” (Def. Ex. D, part 2,

02:40). Mr. Rynearson stated that reasonable suspicion was required but Agent Lands reiterated

that “mere suspicion” was the standard. Agent Lands declared that he had mere suspicion but

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was not required to articulate or divulge it. Mr. Rynearson responded “Ok” and Agent Lands

continued, “So if you’ll just hang tight,, when he gets here you can discuss this with him,” and

Mr. Rynearson said, “Ok.” Agent Lands then joined other agents at the rear of Mr. Rynearson’s

vehicle. (Def. Ex. D, part 2, 03:05). Mr. Rynearson placed two passports on the window next to

the driver’s license and military ID. (Def. Ex. D, part 2, 03:29).

H. Period Of No Interaction (Approx. From 12:53 To 17:23)

25. For approximately five minutes from the time Agent Lands went to the rear of his

vehicle to the time that Agent Perez engaged Mr. Rynearson in conversation, Mr. Rynearson

waited in the car without interacting with any agents.

I. Initial Conversation With Captain Perez (Approx. From 17:24 To 19:25)

26. Over seventeen minutes into the detention, the border patrol supervisor, Captain Raul

Perez, knocked on Mr. Rynearson’s window. (Def. Ex. D, part 2, 07:30). Mr. Rynearson

responded, “Yes, sir?” Captain Perez asked, “Can you hear me, sir?” and Mr. Rynearson

responded, “Yes, sir.” Captain Perez asked, “Can you roll your window down so I can get your

passport?” Mr. Rynearson responded, “Sure,” though the window was already partially down,

and asked, “You want the official one, or you want the personal one?” Captain Perez said,

“Both,” Mr. Rynearson responded, “Both, ok.” Captain Perez said, “I can barely hear you” and

Mr. Rynearson responded, “I’ll speak up, I can hear you just fine.” Captain Perez said, “Ok.”

Mr. Rynearson gave Captain Perez two passports through the window that was already partially

rolled down. (Def. Ex. D, part 2, 07:45).

27. Captain Perez said, “Mr., I’m going to mispronounce it” and Mr. Rynearson said,

“Rynearson” and Captain Perez repeated, “Rynearson?” Mr. Rynearson said, “Yes sir.” Captain

Perez asked, “Ok, Mr. Rynearson, was there any reason you didn’t want to tell the agent your

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citizenship?” Mr. Rynearson responded, “He never asked me my citizenship.” Captain Perez

stated, “That’s what we do right there on primary, sir.” Mr. Rynearson repeated, “He never

asked me my citizenship.” Captain Perez said, “Uh huh” and Mr. Rynearson continued, “He only

asked me one question.” Captain Perez said, “Uh huh” and Mr. Rynearson continued, “And, he

asked me was this vehicle mine and I said yes and then he immediately said will you please go to

secondary?” Captain Perez said, “Uh huh” and Mr. Rynearson continued, “He never asked me if

I was a citizen.” Captain Perez asked, “Did you produce your passport there on primary?” and

Mr. Rynearson responded, “No, they never asked for it…” Captain Perez said, “Uh huh” and Mr.

Rynearson continued, “And they never asked about my citizenship…” Captain Perez then said,

“Just bear with me, let me check out your passport and we’ll get you on your way, sir.” (Def. Ex.

D, part 2, 08:37).

28. Mr. Rynearson explained to Captain Perez that he could prove that he was never

asked his citizenship status or for his passport at primary, stating “I have everything videoed right

now…” Captain Perez said, “Ok, that’s fine…” and Mr. Rynearson mentioned that his video

was “Sent on the internet.” Captain Perez said, “That’s fine” and Mr. Rynearson said, “Ok.”

(Def. Ex. D, part 2, 08:43).

29. Captain Perez then directed the questioning toward Mr. Rynearson’s military status,

asking, “And where are you currently stationed?” Mr. Rynearson responded, “I’m in, Laughlin

Air Force Base.” Captain Perez asked, “Laughlin?” and Mr. Rynearson responded, “Yes.”

Captain Perez then asked, “And who’s your CO?” Mr. Rynearson asked, “My commanding

officer?” and Captain Perez responded, “Yes.” Captain Perez then put Mr. Rynearson’s

passports in his shirt pocket. (Def. Ex. D, part 2, 08:55).

30. Mr. Rynearson responded that he “prefer[red] not to provide that information.”

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Captain Perez stated, “Well I can go ahead and call anyway and talk to the OIC of the Provost

Marshall.” Mr. Rynearson said, “Sure. You can.” Captain Perez continued, “So, that’s why I’m

asking you if you’re willing to provide that information.” Mr. Rynearson asked why Captain

Perez “would you need to contact the military” and whether he was “not convinced” that Mr.

Rynearson was an American citizen. Captain Perez responded, “No, I’m asking you who your

CO is.” Mr. Rynearson asked, “Why would you do that?” and Captain Perez responded,

“Because it’s my job, sir.” Mr. Rynearson asked, “It’s your job to interfere with my work?” and

Captain Perez replied, “I’m not interfering with your work, sir.” Mr. Rynearson asked, “Why

would you ask who my commanding officer is?” and Captain Perez said, “That’s alright, you

don’t have to tell me, that’s fine, I’ll be back with you in just a moment, sir.” Mr. Rynearson

said, “Ok.” (Def. Ex. D, part 2, 09:29).

J. Period Of No Interaction (Approx. From 19:26 To 22:13)

31. Following Captain Perez’s questioning regarding Mr. Rynearson’s military chain of

command and duty location, all agents then left the area around Mr. Rynearson’s vehicle, and

Mr. Rynearson began making phone calls to the Border Patrol Headquarters.

K. Second Conversation With Captain Perez (Approx. From 22:14 To 22:20)

32. Captain Perez returned to Mr. Rynearson’s window, knocked on the glass while Mr.

Rynearson was on the phone, and asked, “Laughlin Air Force Base?” (Def. Ex. D, part 3, 02:37).

Mr. Rynearson replied, “Yep.” Captain Perez said, “I’m going to call the Provost Marshall and

CID, ok?” Mr. Rynearson said, “Ok.” Captain Perez left and Mr. Rynearson continued his

phone conversation. (Def. Ex. D, part 3, 02:42).

L. Period Of No Interaction (Approx. From 22:21 To 32:31)

33. Following Captain Perez’s second line of questioning regarding Mr. Rynearson’s duty

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location, there was no further interaction between Mr. Rynearson and the border patrol agents for

approximately another ten minutes. During this time, Mr. Rynearson completed his calls to the

Border Patrol Headquarters and called the civil rights department of Homeland Security, on the

suggestion of an individual at the Border Patrol Headquarters.

M. Release From Detention (Approx. From 32:32 To 33:50)

34. Agent Lands then returned to Mr. Rynearson’s vehicle and knocked on the window.

(Def. Ex. D, part 4, 03:46). Mr. Rynearson responded, “Yes?” and Agent Lands began the

process of releasing Mr. Rynearson. Agent Lands said, “If next time, we appreciate your

cooperation, ok, next time, if you’d just be a little more cooperative, ok? Understand, I know

you may be able to hear us just fine but we got a lot of traffic out here, ok? There’s the highway,

like I said, there’s the highway noise, there’s the traffic behind you. If you could roll down your

window, you don’t have to, I understand you may not want to roll it all the way down but at least

enough that we can communicate. Because we’re trying to do this as expedient as possible

because we do have a lot of cars, you know what I’m saying? So if you could be just a little

more cooperative, roll down your window some and have a little more of a dialogue with us, that

may help speed things along. Keep these handy, ok, and if you want to just hand this to us and

let us look at it, that would be fine. You know what I’m saying?” Mr. Rynearson replied, “I

understand what you’re saying.” Agent Lands said, “Yeah, because that eliminates a lot of the

talking, you understand? You just hand this to me, I can inspect it, but you giving it to me

through a window and not letting me look at it, see what I’m saying? We gotta inspect it to make

sure it’s not a counterfeit document.” Mr. Rynearson replied, “I understand what you’re saying.”

Agent Lands asked, “Ok, we good to go now?” Mr. Rynearson replied, “We’re good.” Agent

Lands then released Mr. Rynearson. Mr. Rynearson replied, “Thank you.” (Def. Ex. D, part 4,

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04:59).

35. The total length of time that Mr. Rynearson was detained is just shy of thirty-four

minutes. (Def. Ex. D, parts 1-4).

36. Agent Lands declares that record checks take a “couple of minutes.” (Def. Ex. A, at

4). Captain Perez declares that it took him approximately ten to fifteen minutes to arrive at the

checkpoint. (Def. Ex. B, at 2). There was a supervisory border patrol agent already on the scene

when Captain Perez arrived. (Def. Ex. B, at 2). Captain Perez further declares that he contacted

Laughlin Air Force Base in order to confirm Mr. Rynearson’s “military identify,” a process

which took approximately ten to fifteen minutes. (Def. Ex. F, at 2).

N. Video Recording Of The Incident

37. Mr. Rynearson posted a video recording of this incident on YouTube. The video

posted contained footage from two of the five cameras and was edited to combine footage,

protect Mr. Rynearson’s identity and military affiliation, and to satisfy YouTube upload

requirements. The video uploaded online, a copy of which appears to have been offered as

Defense Exhibit D, is an accurate though imperfect account of what transpired during the

encounter. (Pl. Ex. A ¶ 12).

O. Letter From Chief Harris

38. 26 days after the incident, Chief Harris sent a letter to Mr. Rynearson’s commanding

officer, Lt Col Richard Nesmith concerning the 18 March encounter. In the letter, Chief Harris

wrote to complain about Mr. Rynearson’s conduct and to suggest grounds for disciplinary action

(Pl. Ex. B).

P. Plaintiff’s Live Complaint Facts

39. Plaintiff has set forth the following facts in his live complaint:

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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 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 Richard’s 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 answer me earlier?” Agent Lands knew he had not asked that

question earlier. Richard responded, “You never asked me if I was a U.S. citizen.”

Agent Lands informed Richard, “we've got a supervisor coming” and left the

secondary area. Richard put his military passport and his personal passport on

the window along with his driver’s license and military ID card.

11. Also at one point in the secondary checkpoint Agent Lands

pretended not to hear Richard when Richard asked if he was being detained and

why. Lands could clearly hear Richard’s queries. Richard’s car windows were

not tinted and were unobstructed and Lands could easily see there was no one but

Richard in the car. Lands clearly says to Richard that things will be done “the

hard way” because Richard would not exit his car for the illegal search of

contraband and seizure. Richard was not legally required to exit his car. Lands

falsely claimed Richard was being evasive when in fact Richard was not being

evasive. Lands falsely claimed to Richard that Lands asked Richard about his

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immigration status before going to the secondary checkpoint. Richard showed

Lands his military ID and driver’s license yet was detained for more than thirty

minutes thereafter. Richard did not consent to any detention at any time. Richard

questioned Defendant Agent Lands’ request to go to the secondary inspection area

and the reason for being detained.

12. No agent requested to view the offered passports, until Captain

Perez asked to see them more than six minutes after Richard asked Agent Lands if

he wanted a passport. After giving the two passports to Captain Perez, Captain

Perez asked Richard, “Was there any reason you didn’t want to tell the agent your

citizenship?” and stated, “that’s what we do right there on primary, sir.” Captain

Perez knew that Lands had not asked Richard about his citizenship. Richard

responded, “He never asked me my citizenship.” Captain Perez then stated, “Let

me check out your passports, and we’ll 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 Richard’s

commanding officer’s 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 Richard’s vehicle and person and to try to get Richard to

comply with further illegal search and seizure of Richard‘s vehicle and person.

Defendant Captain Perez informed Richard he would contact Provost Marshall

and CID. Captain Perez could easily have obtained Richard’s 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

Richard’s immigration status but wanted to perform an illegal search and seizure

of Richard and Richard’s 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 Richard‘s 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 Richard‘s illegal

detention. Captain Perez knew that Lands was doing illegal searches and seizures

of vehicles and persons at the checkpoint and knew that’s what Lands was trying

to do to Richard and his vehicle. Perez believed Richard when Richard said 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,

driver’s license and military ID.

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PLAINTIFF’S FACT APPENDIX Page 17

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. 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 Richard’s 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 Richard’s 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 Richard’s 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 Richard’s 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 Richard’s 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 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 Richard’s 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

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PLAINTIFF’S FACT APPENDIX Page 18

said something to the effect of “you are the only pilot who won’t answer where

you’re 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 Richard’s vehicle without consent or probable cause

or reasonable suspicion and took Richard‘s 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.

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.

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PLAINTIFF’S FACT APPENDIX Page 19

RESPECTFULLY SUBMITTED,

LAW OFFICE OF RANDALL L. KALLINEN PLLC

BáB etÇwtÄÄ _A ^tÄÄ|ÇxÇ 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 77012

Telephone: 713/320-3785

FAX: 713/893-6737

E-mail: [email protected]

Attorney for Plaintiff

October 15, 2012

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 October 15, 2012:

Harold E. Brown, AUSA (ECF)

601 N.W. Loop 410, Suite 600

San Antonio, TX 78216 BáB etÇwtÄÄ _A ^tÄÄ|ÇxÇ

Randall L. Kallinen

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April 13, 2010

LtCDI Richard L. Nesmith Commander 85 th Flying Training Squadron United States Air Force Laughlin AFB, TX 78843

LtCol Nesmith,

240 I Dodson Avenue Del Rio, TX 788+0

u. S. Customs and Border Protection

This letter is in reference to an encounter with Major Richard Lee Rynearson at the Uvalde Border Patrol Checkpoint on Highway 90. The following is a synopsis of the events as they have been relayed to me. This incident occurred on March 18,2010 at approximately 12:45 PM.

Major Rynearson approached primary inspection at the Highway 90 Checkpoint. A Uvalde Border Patrol Agent asked him to roll down his window in order to conduct a brief, routine inspection. Mr. Rynearson would only roll his window down a few inches, 'which made it very difficult for the agent to have a clear conversation with him. There was quite a bit of traffic related noise in the primary lane and the agent could not clearly communicate with Mr. Rynearson. Additionally, a tractor trailer had pulled up directly behind Mr. Rynearson's vehicle, and this made it even more difficult for the agent to communicate with Mr. Rynearson. After several attempts to get Mr. Rynearson to roll down his window, the Border Patrol agent referred him to secondary inspection. (A referral to secondary inspection also prevents the traffic from backing up in the primary lane of traffic.)

At secondary inspection, the Border Patrol agent approached Mr. Rynearson's vehicle in an effort to speak with him and Mr. Rynearson rolled his window all the way up. Mr. Rynearson refused to exit his vehicle or roll down his window in order for the agents to have a clear conversation with him.

Mr. Rynearson immediately began to question the agent's authority for directing him into secondary and continued to refuse to roll down his window. The behavior displayed by Mr. Rynearson was out of the ordinary, which immediately raised the agent's suspicions. We inspect, quite literally, thousands of people per day and Mr. Rynearson's actions were very unusual, clearly intended to create a confrontational atmosphere and prevent the officer from performing a routine immigration inspection.

Mr. Rynearson became very argumentative and challenged the Border Patrol's authority at the checkpoint. Mr. Rynearson stated he was in the military and asked ifhe didn't look like a U.S. citizen.

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LtCoJ Richard L. Nesmith Page 3

The agents asked for identification and Mr. Rynearson put his passport and Florida driver's license against the inside of the window for the agents to see through the glass . This, again, is very uncharacteristic of the traffic we encounter at the Uvalde Checkpoint. The vehicular traffic passing under the checkpoint canopy makes it difficult for the agents to hear any conversations through a rolled up window. The Border Patrol agent asked Mr. Rynearson to exit his vehicle and he again refused. Major Rynearson was typing on a lap top computer while sitting in his vehicle.

A Border Patrol supervisor requested Mr. Rynearson's identification. Mr. Rynearson rolled down his window approximately W' and passed his identification to the supervisor. The Border Patrol supervisor requested the name of Major Rynearson's commanding officer's and he refused to provide this information. The supervisor wanted to corroborate the information that Mr. Rynearson was conveying to the agents.

The supervisor then telephoned Laughlin Air Force Base. After speaking with Captain Dinesen, Chief Security Force and L1. Colonel Richard 1. Nesmith, Squadron Commander at Laughlin APB, in conjunction with the examination of Mr. Rynearson's identification and passports, it was determined that he was a U.S. citizen and he was released.

Of concern in this matter, is the fact that Mr. Rynearson could have easily prevented this entire episode by simply lowering his window at primary inspection and declaring himseJfto be a United States Citizen. By conducting himself in a manner clearly intended to raise suspicion and hinder the inspection process, he caused what could have been a very brief, routine conversation to become a much more involved ordeal. This was obviously his intent, since he had installed video recording equipment in his vehicle to capture the incident he planned to create.

Along with our immigration law authority, the United States Border Patrol is tasked with detecting terrori sts and terrorist weapons. We also have the authority to investigate and enforce a multitude of other crimes corrunitted in a Border Patrol Agent's presence, such as those observed while the Agent exercises his immigration authority. As a result, we interdict a great deal of illegal narcotics during our checkpoint operations. Additionally, we encounter people wanted for a host of criminal violations to include such crimes as murder, kidnapping, robbery, auto theft etc. We do this while simultaneously honoring and defending the freedoms enjoyed by the citizens ofthis nation. We value the rights and privileges afforded by this country, but our difficult duty is to do our best to defend our homeland from those who would do her harm, while honoring the freedoms of the very people we seek to protect. It is a difficult task, but most of the people we encounter are actually appreciative of the role we play in service to our country.

Mr. Rynearson's refusal to lower his window and engage in simple, courteous conversation required us to expend significant time, attention, effort and resources to detertlUne what could have been accomplished with a short, cordial conversation. Although Mr. Rynearson was inside a quiet car, our agents were standing under a metal canopy with cars and trucks passing by. He apparently expected us to yell at the top of our voices in order to try and communicate under these conditions.

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,LtCQI Richard L. Nesmith Page 3

Mr. Rynearson's videos of the event have been edited and uploaded onto the internet into a website called, "Veteran 's Against Police Abuse," which by implication impugns the integrity of the United States Border Patrol as a whole, and its agents . We believe MAl Rynearson's conduct is unbecoming of such a high ranking officer in the United States Air Force.

Mr. Rynearson's actions diverted personnel and resources from the primary inspection area. This may seem harmless to him, but diversion tactics are also commonly used by criminals attempting to move people and contraband through checkpoints and along secondary roadways. This is one reason his actions raised concerns about his status.

If Mr. Rynearson has concerns about checkpoint operations, there are managers available at the Uvalde Border Patrol Station with which he can discuss those issues. The agents working the checkpoint are following orders, just as I assume Mr. Rynearson follows the orders of his commanding officers.

In the future, I hope Mr. Rynearson will extend the United States Border Patrol the same respect and cooperation he would want if tasked with a similar mission in service to his country. The Border Patrol has absolutely no intention of violating the constitutional rights we all treasure. However, we are dedicated to duty and determined to work within the law to fulfill our mission of service to our country and its citizens.

Sincerely,

Robert L. Harris Chief Patrol Agent Del Rio Sector

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Chapter 1. Organization and Content of the U.S. Customs and Border Protection (CBP) Inspector's Field Manual (IFM).

Chapter 2. Mission and Conduct of Inspections Officers.

Mission Statement Authority Reserved The Inspector and the Public Uniforms, Badges and Identification The Work Environment Reporting Unusual Incidents Hostage Situations Dealing with Attorneys and Other Representatives Land Border Integrity Program (Added 6/23/99; lN99-22)

Chapter 3. The Organization of Inspections.

3.1 (Chapter removed and reserved 211 0106; CBP 1 7-06) 3.2 (Chapter removed and reserved 211 0106; CBP 1 7-06) 3.3 (Chapter removed and reserved 211 0106; CBP 1 7-06) 3.4 (Chapter removed and reserved 211 0106; CBP 17-06)

Chapter 4. Conducting Research.

4.1 General Considerations 4.2 Sources and Organization of Immigration Law 4.3 Basic Research Methods 4.4 Factual Research and Service Data Bases 4.5 (Removed 211 0106; CBP 17-06)

I. Policies and Procedures: Application for Admission. Each chapter from 11 through 18 describes the policies and procedures peculiar to persons included in the chapter title. Other special topics discussed within each chapter are noted in the chapter descriptions.

Chapter 11. Persons Exempt Inspection.

1 1 . I lnspection and Examination 11.2 Members of the U.S. and NATO Armed Forces 11.3 American Indians Born in Canada

Chapter 12. United States Citizens and Other Nationals.

12.1 lnspection of U.S. Citizens 12.2 Evidence of Citizenship

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Inspector's Field Manual (d) Entrv of Lands Within 25 Miles of the Border. Immigration officers may enter private lands, but not dwellings, within 25 miles from any external boundary of the United States for the purpose of "patrolling the border to prevent illegal entry of aliens into the United States" as "conducting such activities as are customary, or reasonable and necessary, to prevent the illegal entry of aliens into the United States.

A dwelling is protected under the fourth amendment of the constitution and entry should only occur with consent, exigent circumstances, or a properly executed search warrant.

As to private lands, the officer shall inform the owner or occupant that they propose to avail themselves of their power of access to those lands.

(e) Checkpoints. The Border Patrol conducts two types of inland traffic-checking operations: checkpoints and roving patrols. Border Patrol agents can make routine vehicle stops without any suspicion to inquire into citizenship and immigration status at a reasonably located permanent or temporary checkpoint provided the checkpoint is used for the purpose of determining citizenship of those who pass through it, and not for the general search for those persons or the vehicle. Inquiries must be brief and limited to the immigration status of the occupants of the vehicle. The only permissible search is a "plain view" inspection to ascertain whether there are any concealed illegal aliens.

In contrast, INS officers on roving patrol may stop a vehicle only if aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion (reasonable suspicion) that the vehicle contains illegal aliens. Absent consent, a more in-depth search requires probable cause for both types of inland traffic-checking operations.

18.7 Degrees of Suspicion.

(a) Mere Suspicion. At the border or its functional equivalent, an inspector needs only mere suspicion to justify a search and comply with the requirements of the Fourth Amendment. This is because the person is attempting to enter the United States from abroad and may reasonably be required to demonstrate that the person and his or her belongings are entitled to enter the United States.

(b) Reasonable Suspicion. Before an inspector may constitutionally detain a person (non-entry related case), the inspector must have reasonable suspicion that the person is an alien and is illegally in the United States. This higher degree of suspicion arises generally in questioning persons encountered in and around the port who are awaiting persons referred to secondary. This suspicion is based on questioning of alienage alone and also involves specific articulable facts, such as particular characteristics or circumstances which the inspector can describe in words.

(c) Probable Cause. Probable cause is the degree of suspicion which an inspector must have before constitutionally making an arrest under either civil or criminal law. An inspector has probable cause to arrest or search if evidence and circumstances which would lead a

I-LINK

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1

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. )

REPLY TO RESPONSE 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 reply to the Plaintiff’s response to the 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.

ARGUMENT AND AUTHORITIES

A. The Conspiracy and Supervisory Claims Must be Dismissed for Failure to State a Claim Upon Which Relief can be Granted.

The Amended Complaint is simply a series of conclusory and implausible allegations

including no operative facts, other than those concerning the encounter and of other stops that he

claims demonstrate a pattern of activity at the Uvalde checkpoint. This is not sufficient to allege

a conspiracy involving Agent Lands and Supervisory Agent Perez since there are no operative

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2

facts concerning their personal involvement in these activities alleged in the Amended

Complaint.

As to supervisory liability, Agent Lands cannot plausibly be considered under an

obligation to train Supervisory Agent Perez. The Amended Complaint does not plead any

operative facts demonstrating a requirement on the part of Supervisory Agent Perez to train

Agent Lands.

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

Defendants Are Entitled to Summary Judgment on Qualified Immunity.

The Defendants make this simple and straightforward argument: the video evidence

along with their declarations demonstrate that their conduct was objectively reasonable during

the 34 minutes that Plaintiff was at the checkpoint. The inspection of the Plaintiff took a

reasonable amount of time given the delays caused by the Plaintiff’s rude and obstreperous

behavior.

Agent Lands sent Plaintiff to secondary inspection so he could deal with a semi-tractor

trailer that was immediately behind Rynearson’s vehicle. It took about a minute for Agent Lands

to get over to the secondary inspection point to conduct his inspection. The video further

demonstrates that Plaintiff lost his temper, confronted Agent Lands, was rude, refused to roll

down his window and cooperate with the inspection, and refused to provide his documents to

Agent Lands, who needed to physically inspect them to ensure they were genuine. The cases

cited by the Plaintiff concerning lack of cooperation during investigative stops are inapposite.

This was an immigration inspection which could not be terminated until Agent Lands satisfied

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3

himself that Plaintiff was lawfully in this country. The Plaintiff’s cooperation in the inspection is

essential.

Once it became obvious that Plaintiff would not calm down and cooperate, Agent Lands

took the entirely reasonable step of summoning a supervisor to deal with Plaintiff, so this more

experienced and senior Border Patrol Agent could continue the inspection. When he arrived he

dealt with a more subdued Plaintiff, who cooperated by rolling down his window at least enough

to be heard and to hand his documents to Supervisory Agent Perez, who in turn took the logical

step of confirming the identity of Plaintiff by examining his documents and calling military

authorities to confirm Plaintiff’s identity.

Plaintiff makes four arguments concerning the summary judgment motion, and each will

be addressed in turn. None of these raise a substantial question of material fact concerning

whether the Agent Lands or Supervisory Agent Perez’s conduct violated his Fourth Amendment

rights. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The burden is on the plaintiff to

demonstrate a violation of his Fourth Amendment rights. Thomas v. Upshur, 245 F.3d 447, 456

(5th Cir. 2001)). If plaintiff demonstrates the violation of a constitutional right, then the Court

asks whether a reasonable defendant would clearly have known that his conduct was unlawful in

the situation he confronted. Saucier v. Katz, 533 U.S. at 201 (citing Wilson v. Lane, 526 U.S.

603, 615 (1999).

The contention that there is a question of material fact concerning whether Plaintiff was cooperative during his encounter with Agent Lands.

The video and Agent Lands’ declaration demonstrate that Plaintiff refused to cooperate

with the immigration inspection by, among other actions, challenging Agent Lands’ reasons for

questioning him; refusing to roll down his window so he could engage in a conversation instead

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4

of a shouting match; refusing to provide his documents to Agent Lands so he could inspect them.

The Court can review the video for these facts. The issue is not whether the Plaintiff can hear

Agent Lands, but whether Agent Lands can hear the Plaintiff, ask his questions in a

conversational tone, and inspect his documents. The length of detention for the inspection was

extended by the Plaintiff’s refusal to cooperate with the inspection, and there was no violation of

his Fourth Amendment rights due to the delay caused by the Plaintiff’s actions.

The contention that there is a material question of fact concerning the opportunity to conduct the inspection.

The video and Agent Lands’ declaration demonstrate that the area was noisy (the loud

background noise can be heard inside the car), thus there is no question that Agent Lands was

having difficulty in hearing the Plaintiff. The video also demonstrates the Plaintiff refused to

provide his documents to Agent Lands by rolling down his window and handing them to Agent

Lands, as he ultimately did to Supervisory Agent Perez. There is no substantial question of

material fact on this issue. Again, Plaintiff’s refusal to cooperate with the inspection lengthened

its duration, and there was no violation of his Fourth Amendment rights due to the delay caused

by the Plaintiff’s actions.

The contention that an immigration inspection has the same standards as an investigative stop based on reasonable suspicion of wrongdoing.

Plaintiff simply misstates the law in equating an immigration inspection with an

investigative stop. An immigration inspection is a suspicionless detention conducted to

determine whether a person is legally in this country. See United States v. Martinez-Fuerte, 428

U.S. 543, 566 (1976). While the detention should be brief, the inspection continues until the

Border Patrol Agent is able to complete the inspection. Plaintiff’s actions in refusing to

cooperate with the questioning extended the time he spent at the secondary inspection point, and

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5

therefore the duration of the detention was due to the Plaintiff’s actions which thwarted the

diligent actions of Agent Lands in trying to complete his inspection. Since Plaintiff prolonged

the detention by Agent Lands, there is no Fourth Amendment violation. See United States v.

Sharpe, 470 U.S. 675, 687-88 (1985).

The contention that Supervisory Agent Perez was not diligent in pursuing his inspection and investigation of Plaintiff’s identity.

Plaintiff contends that Supervisory Agent Perez was not diligent in ascertaining the

Plaintiff’s citizenship, thereby extending the detention by approximately 15 minutes.

Supervisory Agent Perez was required to assume the inspection of a person who claimed United

States citizenship and provided documents after what the video demonstrates is obstreperous and

uncooperative behavior by the Plaintiff toward Agent Lands. Supervisory Agent Perez was

suspicious—reasonably so—that the Plaintiff’s documents might not be genuine or that he might

not be whom he claimed to be based on his demeanor, refusal to roll down his window,

challenging Agent Lands, and refusing to hand his documents to Agent Lands. The actions he

took, were reasonable. The initial questioning of the Plaintiff allowed him to get the Plaintiff’s

basis for claiming the right to be in this country (citizenship). Questioning the plaintiff

concerning his military status (a person claiming to be in the Air Force would be able to state

where they are stationed and the name of their commanding officer) is reasonable to verify

military status. Supervisory Agent Perez then left and examined the Plaintiff’s documents, ran

the databases to verify the Plaintiff’s identity and determined that passport was genuine.

Supervisory Agent Perez asked about his duty station, and advised him that he was calling the

Laughlin Air Force Base Provost Marshal Office and CID. Supervisory Agent Perez, after

advising the Plaintiff of this, asked “ok?” Plaintiff responded, “OK.”

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6

The time it took to verify the Plaintiff’s identity, and therefore his citizenship as

demonstrated by his passport, was reasonable. Whether considered a part of the inspection, or an

extension of it based on the reasonable suspicion that the Plaintiff might not be whom he claimed

to be, the Plaintiff does not challenge the time it took to do these tasks, only that they were

unnecessary. While Plaintiff contends there is a question of material fact because Agent Lands’

declaration states it should take a couple of minutes to verify the Plaintiff’s identity through

databases, Supervisory Agent Perez’s declaration demonstrates that he was running a more

extensive check that included passport verification.

Until these tasks were completed (including inquiring at Laughlin Air Force Base),

Supervisory Agent Perez was not sure about Plaintiff’s citizenship. Thus, all of this was within

the scope of the immigration inspection, as extended by the Plaintiff’s refusal to allow Agent

Lands to complete the initial inspection, and then by Agent Perez’s need to verify the Plaintiff’s

citizenship. The detention, as extended by the Plaintiff’s refusal to cooperate with the

inspection, “lasted no longer than necessary to fulfill its immigration-related purpose.” United

States v. Machuca-Barrera, 261 F.3d 425, 435 (5th Cir. 2001).

In the alternative, should the Court find that the duration of the detention was too long to

pass constitutional muster, the Court must still find that Agent Lands and Supervisory Agent

Perez’s actions were objectively reasonable. Saucier v. Katz, 533 U.S. at 201 (citing Wilson v.

Lane, 526 U.S. 603, 615 (1999). As to Agent Lands’ conduct, it is difficult to fathom what else

he might have done when faced with the Plaintiff, who was bent on thwarting an immigration

inspection. He has to ask his questions concerning citizenship, which he cannot do if the

Plaintiff refuses to roll down his window and speak in a normal voice; yells and argues with him

instead of answering questions, and refuses to provide his documents for inspection. All of these

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7

actions are authorized by United States v. Martinez-Fuerte. When the Plaintiff thwarted Agent

Lands, he took the entirely reasonable step of summoning a supervisor to the scene. All of this

delay is due to the Plaintiff’s actions.

The immigration inspection finally began when Supervisory Agent Perez arrived at the

Plaintiff’s vehicle. The total time to complete the inspection was approximately 15 minutes.

While this is longer than the 3-5 minutes such an inspection would ordinarily take, this period

must be considered under the unique facts of this case. Supervisory Agent Perez was aware that

the Plaintiff had refused to cooperate with a routine immigration inspection. Carefully inspecting

Plaintiff’s documents, calling to confirm his military status, and confirming his identity through

additional database checks took only an additional ten minutes, a period justified by Supervisory

Agent Perez’s suspicions concerning Plaintiff’s identity, and also by the need for increased care

in examining the claim to citizenship of someone who initially refused to cooperate with the

Plaintiff’s extreme behavior. Should the Court find that this was an impermissible extension of

the detention, it will create new law, since no case discusses this situation. Accordingly, a

reasonable Agent under these circumstances would not have known that taking additional steps

to verify citizenship clearly violated the Plaintiff’s Fourth Amendment rights.

WHEREFORE, premises considered, the Court should DISMISS all claims against the

defendants.

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8

Respectfully Submitted,

ROBERT PITMAN UNITED STATES ATTORNEY

BY: /s/ Harold E. Brown Jr. HAROLD E. BROWN, JR. Assistant United States Attorney Oklahoma Bar No. 001192 601 N.W. Loop 4l0, Suite 600

San Antonio, Texas 78216 (210) 384-7320

(210) 384-7322 Fax [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on October 22, 2012, I electronically filed the foregoing document with 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

/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. )

RESPONSE TO PLAINTIFF’S MOTION FOR CONTINUANCE FROM SUMMARY JUDGMENT TO CONDUCT DISCOVERY

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 Response to Plaintiff’s Motion For Continuance From Summary Judgment

To Conduct Discovery. [Doc. No. 34].

ARGUMENT AND AUTHORITIES

In response to this motion, the Defendants stand on their Motion to Stay Discovery. [Doc.

No. 30]. Plaintiff’s arguments fail to address the settled law that a motion for summary

judgment on grounds of qualified immunity must be granted if the evidence demonstrates that

the actions of the Defendants did not violate the Plaintiff’s Fourth Amendment rights. Plaintiff’s

counsel cites no case addressing the need for discovery in response to a qualified immunity

motion. Nor does Plaintiff’s counsel marshal any facts that overcome the defendants’ motion for

summary judgment on grounds of qualified immunity.

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2

The sole question before the Court is whether 34 minutes or so was an objectively

unreasonable length of time to detain the Plaintiff. The defense of qualified immunity precludes

harassment of the defendants in the form of discovery into the “veracity” of the defendants or a

fishing expedition for evidence of intent. “One of the reasons for qualified immunity is to

protect a defendant from the burdens of discovery when the plaintiff has not filed an adequate

claim.” Winstead v. Box, 419 Fed.Appx. 468, 469 (5th Cir. 2011) (citing Gaines v. Davis, 928

F.2d 705, 707 (5th Cir.1991) (per curiam)).

Discovery is unnecessary to determine the length of the detention. All parties agree that

it was approximately 34 minutes.

Discovery is unnecessary to determine the reasons for the length of the detention. The

summary judgment evidence, especially Plaintiff’s own video, demonstrates that it was the

Plaintiff’s obstreperous and abusive conduct that thwarted Agent Lands’ inspection and caused

him to resort to calling Supervisory Agent Perez to the checkpoint. The summary judgment

evidence demonstrates that Supervisory Agent Perez promptly drove to the checkpoint, briefly

discussed the situation with Agent Lands, questioned the Plaintiff, verified Plaintiff’s reasons for

being in this country by inspecting the documents, verifying them, and verifying the Plaintiff’s

identity by calling law enforcement authorities at Laughlin Air Force Base. None of these facts

are contested. All the Plaintiff contends is that 30 minutes is too long for these actions to be

taken.

WHEREFORE, premises considered, the Court should deny the Motion, and grant the

motion to stay discovery previously filed by the Defendants.

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3

Respectfully Submitted,

ROBERT PITMAN UNITED STATES ATTORNEY

BY: /s/ Harold E. Brown Jr. HAROLD E. BROWN, JR. Assistant United States Attorney Oklahoma Bar No. 001192 601 N.W. Loop 4l0, Suite 600

San Antonio, Texas 78216 (210) 384-7320

(210) 384-7322 Fax [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on October 29, 2012, I electronically filed the foregoing document with 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

/s/ Harold E. Brown Jr.___ HAROLD E. BROWN, JR.

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0UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

MAJOR RICHARD RYNEARSON, Plaintiff,

v.

UNITED STATES OF AMERICA;AGENT LANDS, Border Patrol Agent,Individually; and RAUL PEREZ,Border Patrol Agent, Individually, Defendants.

§§§§§§§§§§

Civil Action No. 2:12-CV-024–AM–CW

REPORT AND RECOMMENDATION

Pending before the Court is the Motion to Dismiss All Claims Asserted Against Defendants

Border Patrol Agent Justin K. Lands and Supervisory Border Patrol Agent Raul Perez. ECF No. 29.

The motion, which is actually a combined motion to dismiss and motion for summary judgment, was

referred to the undersigned pursuant to 28 U.S.C. § 636 for a report and recommendation. Plaintiff

Rynearson responded to the motion but also filed a motion to continue to conduct discovery before

having to respond. ECF No. 34. After reviewing Defendants’ motion, Plaintiff’s motion, the

response, and the reply, the undersigned RECOMMENDS that Defendants’ motion be GRANTED

in full. Furthermore, because Rynearson has not made a sufficient showing for the need for limited

discovery, his motion to stay should be DENIED.

I. UNDISPUTED FACTS AND PROCEDURAL HISTORY1

On March 18, 2010, Plaintiff Major Richard Rynearson approached a fixed immigration

checkpoint located on United States Highway 90 in Uvalde County, Texas, approximately 67 miles

The undisputed facts come from the pleadings and a video submitted by Defendants that Rynearson recorded1

while stopped at the immigration checkpoint. See ECF No. 38. Rynearson posted the video on his personal blog

http//www.pickyourbattles.net and on YouTube.

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from the United States-Mexico border. Defendant Justin Lands, a Border Patrol agent on duty at the

time, stopped Rynearson’s vehicle to conduct an immigration inspection. Rynearson’s window was

rolled down just a few inches. Lands asked Rynearson if the vehicle was his, and after Rynearson

said yes, Lands asked if he could roll down his window some more. Rynearson lowered the window

slightly more. Without asking any immigration questions, Lands asked again if the vehicle was his,

and after Rynearson said yes, Lands asked Rynearson to move his vehicle to the side. When

Rynearson inquired as to why, Lands said that there was traffic behind him, to move to the secondary

inspection area (“secondary”), and he would be with him in a moment.

Rynearson drove his vehicle to secondary but rolled up his window completely. Less than

a minute later, Lands asked him to step out of his vehicle, but Rynearson refused and also refused

to roll down his window, despite Lands stating that he could not hear Rynearson. Rynearson asked

through the closed window if Lands was detaining him and why. Lands said he was going to need

his identification, so Rynearson placed his license against the window of the vehicle. Lands said that

he was going to have to inspect it to see if it was an authentic form of identification, but Rynearson

just placed a military identification up against the window next to his license. After Lands

acknowledged that Rynearson was in the military, Lands said that he would discuss why Rynearson

was being detained if he would step out of the vehicle. Rynearson, however, refused to get out, roll

down his window, or hand over the forms of identification. Lands said that this could be done the

easy way or the hard way, prompting Rynearson to make a phone call and leave a message with

someone about how he was being detained.

Rynearson then asked Lands several times more why he was being detained. Lands again

stated that he was having trouble hearing Rynearson, but Rynearson indicated that he could hear

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Lands just fine and that he did not want to roll down his window. Lands explained through the

closed window that the purpose of the immigration checkpoint was to verify citizenship and stated

that he was not yet satisfied that Rynearson was a United States citizen. He indicated this was

because Rynearson would not roll his window down and was being evasive about answering

questions. Instead of rolling down his window, Rynearson continuously asked through the closed

window how he was being evasive and argued that he answered every question presented to him.

Lands eventually gave up trying to talk to Rynearson and said he would be back.

Meanwhile, Rynearson made a phone call to the FBI in San Antonio and explained to the

person who answered that he was referred to secondary for no reason, was not being told anything,

and felt threatened. He also indicated he was recording the incident from several different angles

from inside the vehicle and posting it on the internet. Apparently, Rynearson had encountered

problems at the Uvalde checkpoint in the past and indicated to the person on the phone that he felt

like they had been expecting him. Although the details are unclear, they discussed reasonable

suspicion and Fourth Amendment rights for a while before ending the call.

After the phone call, Rynearson told Lands that he had called the FBI and said they told him

that Border Patrol agents had to have reasonable suspicion to search his vehicle. Rynearson finally

rolled his window down a little bit and demanded to know what reasonable suspicion there was.

Lands first explained that he was having difficulty hearing Rynearson with the window rolled up.

Rynearson responded that he knew Lands could hear him. Lands told Rynearson that a supervisor

was coming, then explained to Rynearson that he did not understand the law, and that he did not

need reasonable suspicion to place him in secondary.

Rynearson asked if Lands doubted whether or not he was a United States citizen, and Lands

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indicated that a military ID and a driver’s license were not immigration documents and were

insufficient to establish citizenship. Rynearson asked if Lands wanted a passport, and Lands finally

asked for the first time if Rynearson was a United States citizen. After Rynearson responded yes,

Lands asked why he would not answer earlier, to which Rynearson responded that Lands had never

asked. Lands retorted that there was a large truck behind him at the primary inspection area, and that

was why he needed Rynearson to roll down his window so he could hear better. Rynearson said he

could hear Lands just fine, but Lands noted Rynearson was inside the vehicle and not where he was

standing.

Lands then indicated that all this was irrelevant, because Rynearson was being detained for

not answering questions. Lands, however, indicated that he did not need reasonable suspicion to

secondary anyone for an immigration violation. Rynearson asked if Lands thought he had committed

an immigration violation, and Lands indicated that was not what he was saying, and a supervisor was

coming. After more pressing, Lands said that all he needed was mere suspicion of an immigration

violation, that he had that, but said he did not have to get into it with Rynearson about any articulable

facts as to why he was being detained. Lands then said that Rynearson could discuss this with his

supervisor and terminated the conversation.

Rynearson placed two passports next to his military ID and license against the closed window

at that point but did not summon Lands or any other agent. When the supervisor, Defendant Raul

Perez, arrived five to ten minutes later, Rynearson rolled his window down enough to pass Perez

both passports–an official one and a personal one. Even with the window rolled down some, Perez

also indicated that he was having trouble hearing Rynearson. Instead of rolling down his window,

Rynearson said he would speak up and that he could hear Perez just fine.

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Perez asked Rynearson why he would not answer questions about his citizenship at the

primary inspection area (“primary”), and Rynearson replied that he was never asked. Perez asked

Rynearson if he produced his passport at primary, and Rynearson responded again that no one never

asked. Perez then told Rynearson that he would check out his passport. Rynearson said he could

prove everything he was saying because it had been videotaped. Perez indicated that wasn’t

necessary and then asked Rynearson who his commanding officer was in the military. Rynearson

refused to tell him and asked why he would interfere with his work. Perez said it was fine for

Rynearson not to tell him and that he could get the name of the officer through other means.

While awaiting Perez’s return, Rynearson made other calls to unknown sources, complaining

of being unlawfully detained. During one of the calls, Perez returned briefly and stated that he was

going to call the “Provost Marshal and CID.” Rynearson interrupted the call briefly and told Perez

okay. After a few minutes, Perez came back and cleared Rynearson. Before sending him off, Perez

asked Rynearson to be more cooperative next time, explained to him that there was a lot of traffic

and noise, and indicated that rolling down the window and handing over the documents next time

would help to verify his citizenship quickly. Perez also stated that viewing identification documents

through the window was insufficient to insure that the documents were genuine and not counterfeit.

No search was ever conducted, and after approximately thirty-four minutes total, Rynearson drove

away.

Rynearson filed an administrative claim pursuant to the Federal Tort Claims Act, 28 U.S.C.

§ 2671 et seq., with the U.S. Customs and Border Protection, complaining of the stop. See ECF No.

27-2, Exhibit B. The claim was denied on January 7, 2011. ECF No. 27-3, Exhibit C.

Rynearson then filed the present suit on March 16, 2012 and filed an amended complaint on

5

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August 23, 2012. ECF No. 23. In the amended complaint, Rynearson presents a subjective variation

of the facts shown in the video. Although most of the essential facts are the same, Rynearson asserts

that Lands asked him questions and moved him to secondary 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.” Pl.’s Am. Compl. at 4. He also asserts that: (1)

he voluntarily provided his military ID and driver’s license; (2) Lands could clearly hear him the

entire time even with his window rolled up; (3) Lands said he would do things the hard way because

Rynearson would not exit his car for an illegal search and seizure; (4) Lands falsely claimed he was

being evasive; (5) Lands falsely claimed that he had asked him about immigration status; (6) Perez

knew that Lands had not asked him about his citizenship; (7) Perez asked for his commanding

officer’s name to harass him and get him in trouble with the military for not allowing an illegal

search and seizure; (8) Perez was not concerned with immigration status but instead wanted to

conduct an illegal search and seizure; (9) Perez and Lands knew it was common practice to conduct

illegal searches and seizures at the checkpoint; and (10) Perez knew Lands was conducting illegal

searches and seizures and was trying to do so with him too.

Rynearson also claims that he was never combative, made no threatening gestures, did not

resist answering any questions except regarding his commanding officer, and did not act in any

manner to cause reasonable suspicion or probable cause that a law had been violated. He

furthermore asserts that Lands and Perez ignored his offering of a passport and repeatedly lied that

Lands had asked about immigration status. The amended complaint also details that Robert Harris,

the Chief Border Patrol Agent, wrote a letter to his military commander a month later, criticizing his

acts. Instead of disciplining or retraining Lands and Perez, their actions were praised. Rynearson

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also indicates that he has been stopped and detained at the same checkpoint longer than necessary

at least three times prior, thereby causing him anxiety, fear, and anger when driving through the

checkpoint. Although he describes these incidents in detail, none of the present defendants are

alleged to have participated in any of these incidents.

Based on his experience that day at the checkpoint, which he describes as unreasonably long,

Rynearson alleges the following causes of action: (1) Count One: negligence and/or gross

negligence; (2) Count Two: false arrest and imprisonment; (3) Count Three: intentional infliction

of emotional distress; (4) Count Four: violations of his rights under the Fourth, Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution for wrongfully detaining him and his

vehicle for an excessive period of time with no reasonable suspicion or probable cause, asking

questions unrelated to immigration status; (5) Count Five: a Bivens action for false imprisonment

and unreasonable search and seizure because he was not free to go; (6) Count Six: a Bivens action

for failure of Perez to supervise Lands and failure of both Defendants to intervene; and (7) a claim

against Lands and Perez for conspiring to violate his Fourth Amendment rights.

Defendants Lands and Perez filed the present motion to dismiss/motion for summary

judgment. ECF No. 29. In the combined motion, Lands and Perez argue that Rynearson is unable2

to state a claim for conspiracy, supervisory liability, or any claims under the Fifth, Sixth, and

Fourteenth Amendments of the Constitution. They further argue that they are entitled to dismissal

or summary judgment for any remaining Fourth Amendment claims. They assert that the stop was

reasonable under the circumstances because of Rynearson’s uncooperative and suspicious behavior,

Defendant United States of America filed a separate motion to dismiss based on different arguments. This2

motion is addressed in a separate report and recommendation.

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and they are therefore entitled to qualified immunity. Rynearson, in response, asks for the3

opportunity to conduct depositions before the Court rules on the motion. Alternatively, Rynearson

argues that (1) he has adequately stated claims for supervisory liability and conspiracy, and (2) Lands

and Perez are not entitled to qualified immunity for any Fourth Amendment claims.

II. LEGAL ANALYSIS

A. Fifth, Sixth, and Fourteenth Amendment Claims in Count Four of the Amended Complaint

Defendants first seek dismissal of the claims of Fifth, Sixth, and Fourteenth Amendment

violations pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a

claim upon which relief can be granted. They argue that under the facts of this case, none of these

amendments are applicable. Rynearson does not respond to this argument.

When considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6),

the complaint must be viewed in the light most favorable to the plaintiff, and all well-pleaded facts

must be accepted as true. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

To state a claim, the plaintiff must plead “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative

level” and must support a “claim to relief that is plausible on its face.” Id. at 555, 570. “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

Defendant the United States of America previously certified that Lands and Perez were acting within the course3

and scope of employment at the time of the alleged acts. Consequently, the tort claims were exclusively covered by the

Federal Tort Claims Act, and the United States was the proper defendant. For that reason, the Court issued an order

substituting the United States as the party for these claims and dismissed these claims as to Perez and Lands. ECF No.

25. The tort claims in Counts One, Two, and Three of the Amended Complaint are therefore not presently at issue.

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U.S. 662, 678 (2009).

The undersigned agrees that these claims should be dismissed. The Fifth Amendment

provides, among other things, that no person “shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of law.” U.S.

Const. amend. V. The Fifth Amendment’s due process clause, however, is not implicated “where

a particular Amendment provides an explicit textual source of constitutional protection against a

particular sort of government behavior . . . .” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal

quotations omitted). The Fourth Amendment explicitly protects against unreasonable searches and

seizures and would therefore be the relevant Amendment to Rynearson’s claim, “not the more

generalized notion of substantive due process . . . .” Id.

The Sixth Amendment, in turn, provides for various rights throughout a domestic criminal

prosecution. See United States v. Balsys, 524 U.S. 666, 672 (1998). Rynearson has not been

criminally prosecuted. Finally, the Fourteenth Amendment only implicates state actions. See

McGuire v. Turnbo, 137 F.3d 321, 323 (5th Cir. 1998). Both Lands and Perez are being sued

because of their acts as federal employees and actors. The undersigned therefore finds that

Rynearson has failed to state a claim for Fifth, Sixth, and Fourteenth Amendment violations.

B. Bivens Claims in Count Five

Although not addressed by the parties, the undersigned notes problems with Count Five of

the Amended Complaint. Because of the hybrid and repetitive nature of Count Five, the undersigned

recommends that this count also be dismissed pursuant to Rule 12(b)(6). In Count Five, Rynearson

brings a Bivens action for 1. false imprisonment and 2. an unreasonable search and seizure because

“he was not free to go until cleared by the defendants.” Pl.’s Am. Compl. at 12-13. Count Two,

9

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however, is also a false imprisonment claim, but under a common law tort theory. And Count Four

alleges a similar unreasonable search and seizure claim for wrongfully detaining him and his vehicle

for an excessive period of time with no reasonable suspicion or probable cause.

Rynearson is essentially combining Counts Two and Four to allege another constitutional

claim in Count Five for false imprisonment. The Supreme Court, however, has held that general

claims of false imprisonment are nothing more than general tort claims. “[F]alse imprisonment does

not becomes a violation of the [Fourth Amendment] merely because the defendant is a [federal]

official.” Baker v. McCollan, 443 U.S. 137, 146 (1979); see also Monroe v. Pape, 365 U.S. 167, 240

n.68 (1961) (“Most courts have refused to convert what would otherwise be ordinary state-law

claims for false imprisonment or malicious prosecution or assault and battery into civil rights cases

on the basis of conclusory allegations of constitutional violation.”). Here, Rynearson’s conclusory

allegation that false imprisonment rises to a constitutional level is insufficient to state a Bivens claim,

and the claim should therefore be dismissed. 4 5

As to Rynearson’s second claim of an unlawful search and seizure in Count Five, it is nothing

more than a repeat of the claim in Count Four and should also be dismissed or considered in

Assuming that a false imprisonment claim can be treated as a constitutional claim instead of a simple state law4

tort claim, which has been done by at least one court, the inquiry has been treated as the same as a Fourth Amendment

unreasonable seizure claim. See, e.g., De La Fuente v. United States, Civ. Action No. L-08-87, 2010 WL 2487942, at

*5 (S.D. Tex. Mar. 31, 2010) (“[T]he inquiry of whether a person has been detained for purposes of false imprisonment

is the same as the inquiry for whether there has been [an unreasonable] ‘seizure’ for Fourth Amendment purposes. In

each situation, a detention can be effected by intentional use of any means to terminate a person’s freedom of movement,

including actual physical restraint, or by explicit or implicit threats of force.”). Therefore, even if the Court or the

parties disagree with the undersigned, the alternate summary judgment analysis for this claim would be identical to that

conducted for the remaining Fourth Amendment claim in the next section. As Section C explains, there was no Fourth

Amendment violation.

Since Rynearson already brought a common law tort claim for false imprisonment that was dismissed as to5

Lands and Perez, there is no sense in construing Count Five as another tort claim.

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combination with the Fourth Amendment claim in Count Four.

C. Fourth Amendment Claims in Count Four of the Amended Complaint 6

Defendants argue that summary judgment is appropriate for Rynearson’s Fourth Amendment

claim in Count Four of the amended complaint. They assert that the video of the stop indisputably

depicts that any delays were a result of Rynearson himself, and they are therefore entitled to qualified

immunity, which protects them from both discovery and liability. They also argue that reasonable

suspicion developed during the stop, thereby justifying an extended stop. Finally, Defendants assert

that even if they violated Rynearson’s constitutional rights, these rights were not clearly established

at the time, thereby still entitling them to qualified immunity.

Rynearson, in response, argues that various events unreasonably extended the stop, causing

his Fourth Amendment rights to be violated. Specifically, he raises issues with the content of the

questioning, his referral to secondary, asking him to step out of the vehicle, asking him to roll down

the window, failing to promptly ask his immigration status, failing to explicitly ask for his

identification, calling a supervisor who was not onsite when another supervisor was available, using

a drug dog, and calling military personnel to confirm his identity.

Rynearson also contends that summary judgment is not appropriate at this stage because of

undeveloped facts. He therefore seeks leave of the Court to conduct discovery on various issues

before proceeding with the present motion for summary judgment. In support, Rynearson argues that

he needs to know: (1) when Perez began his records check and when it was concluded; (2) why

Although not designated as such, Rynearson’s Fourth Amendment claim in Count Four must be brought6

pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the “federal analog to suits brought

against state officials under . . . § 1983.” Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006). “Bivens established that

the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal

court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). Because

Rynearson is seeking monetary damages, this claim falls under Bivens, even if not properly labeled.

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Lands summoned an off-site supervisor when an on-site supervisor was present, and whether this

was standard policy; (3) the extent of military status matters that Perez investigated; (4) whether

communication was actually impeded by wind noise or traffic; (5) whether agents typically ask

questions related to car ownership at primary, rather than immigration questions; (6) whether it is

standard practice to order someone out of the vehicle when a search is not intended; (7) whether it

is standard practice to talk face to face with an agent; (8) what conveyed between Lands and Perez;

and (9) whether it was standard practice to bring a drug dog in.

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

also Whitt v. Stephens Cnty., 529 F.3d 278, 282 (5th Cir. 2008). “A genuine issue of material fact

exists if the record, taken as a whole, could lead a rational trier of fact to find for the non-moving

party.” Tubos de Acero de Mexico, S.A. v. Am. Int’l Inv. Corp., 292 F.3d 471, 478 (5th Cir. 2002).

Generally, “courts are required to view the facts and draw reasonable inferences ‘in the light most

favorable to the party opposing the [summary judgment] motion.’” Scott v. Harris, 550 U.S. 372,

378 (2007) (quoting United States v. Diebold, Inc. 369 U.S. 654, 655 (1962)). However, “[w]hen

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.” Id. at 380. 7

Qualified immunity protects government officials “from liability for civil damages insofar

This standard comes into play here, where a videotape of the incident exists. Similar to Harris, “[t]here are7

no allegations or indications that this videotaped was doctored or altered in any [significant] way, nor any contention

that what it depicts differs from what actually happened.” 550 U.S. at 378. 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).

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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).

Essentially, qualified immunity allows for officers to make reasonable mistakes about whether their

conduct violates the law and protects “all but the plainly incompetent or those who knowingly

violate the law .” Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Anderson v. Creighton, 483

U.S. 635, 638 (1987).

When a defendant properly raises a qualified immunity defense, the plaintiff bears the burden

of overcoming the defense. Bennett v. City of Grand Prairie, 883 F.2d 400, 408 (5th Cir. 1989). 8

In resolving qualified immunity claims, a court must follow a two-step process, inquiring (1) whether

the facts that a plaintiff has alleged or shown make out a constitutional violation; and (2) whether

the right at issue was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533

U.S. 194, 201 (2001). If the answer to either prong is no, then an officer is entitled to immunity from

suit. Id. A court is permitted to exercise its “sound discretion in deciding which of the two prongs

of the qualified immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. 223, 236 (2009).

“‘The relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.’” Lytle v. Bexar Cnty., 560 F. 3d 404, 410 (5th Cir. 2009) (quoting Saucier, 533 U.S.

at 202). Although the very action in question does not have to have previously been held unlawful,

To invoke qualified immunity, a government official must show that the conduct occurred while “acting ‘in8

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) (quoting Garris v. Rowland, 678 F.2d 1264, 1271 (5th Cir. 1982)). These specifications

have been met.

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“in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640;

Manis v. Lawson, 585 F.3d 839, 845-46 (5th Cir. 2009) (“If the law at the time of a constitutional

violation does not give the officer ‘fair notice’ that his conduct is unlawful, the officer is immune

from suit.”). Generally, there must be a Supreme Court or Fifth Circuit decision on point, or in

certain circumstances, a “‘consensus of cases of persuasive authority.’” McClendon v. City of

Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

Qualified immunity provides both immunity from suit and immunity from discovery. See

Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (“One of the most salient benefits of qualified

immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive.”).

As such, the Fifth Circuit “has established a careful procedure under which a district court may defer

its qualified immunity ruling if further factual development is necessary to ascertain the availability

of that defense.” Id. To permit discovery and delay ruling on a qualified immunity defense, the

court must first find “that the plaintiff’s pleadings assert facts which, if true, would overcome the

defense of qualified immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995).

“Thus, a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow

the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and

that defeat a qualified immunity defense with equal specificity.” Backe, 691 F. 3d at 648. Only after

the Court makes this determination, “if the court remains ‘unable to rule on the immunity defense

without further clarification of the facts,’ it may issue a discovery order ‘narrowly tailored to uncover

only those facts needed to rule on the immunity claim.’” Id. (quoting Lion Boulos v. Wilson, 834

F.2d 504, 507-08 (5th Cir. 1987)).

The undersigned finds that both Lands and Perez are entitled to qualified immunity, and

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discovery is unwarranted. The Fourth Amendment guarantees individuals the right “to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S.

Const. amend. IV. Essentially, “[t]he Fourth Amendment imposes limits on search-and-seizure

powers in order to prevent arbitrary and oppressive interference by enforcement officials with the

privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554

(1976).

“A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of

wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Checkpoint stops are

considered “seizures” within the meaning of the Fourth Amendment. Martinez-Fuerte, 428 U.S. at

556. Nonetheless, government agents may constitutionally stop travelers without individualized

suspicion for questioning about immigration status.” United States v. Ventura, 447 F.3d 375, 378

(5th Cir. 2006); Martinez-Fuerte, 428 U.S. at 566 (“[S]tops for brief questioning routinely conducted

at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by

warrant.”).

Checkpoint stops are not without limits, however. The scope of the stop “is limited to the

justifying, programmatic purpose of the stop: determining the citizenship status of persons passing

through the checkpoint.” United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th Cir. 2001). The

permissible duration of the stop is “therefore the time reasonably necessary to determine the

citizenship status of the persons stopped,” which would include “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.” Id.

Notwithstanding, “if the initial, routine questioning generates reasonable suspicion [or

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probable cause] of other criminal activity, the stop may be lengthened to accommodate its new

justification.” Id. at 434. “Thus, an agent at an immigration stop may investigate non-immigration

matters beyond the permissible length of the immigration stop if and only if the initial, lawful stop

creates reasonable suspicion warranting further investigation.” Id. “Accordingly, illegal drug

interdiction may be carried out at immigration checkpoints, though not as the primary purpose of

those checkpoints.” Ventura, 447 F.3d at 378. “Conversely, when officers detain travelers after the

legitimate justification for a stop has ended, the continued detention is unreasonable.” United States

v. Portillo-Aguirre, 311 F.3d 647, 654 (5th Cir. 2002).

A prolonged detention at a checkpoint based on reasonable suspicion is considered a Terry

stop, and “due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’

but to the specific reasonable inferences which [an agent] is entitled to draw from the facts in light

of his experience.” Terry v. Ohio, 392 U.S. 1, 27 (1968); United States v. Brigham, 382 F.3d 500,

506 (5th Cir. 2004) (en banc). The agent must be able to point to “some objective manifestation that

the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449

U.S. 411, 417 (1981). The test is one of reasonableness given the totality of the circumstances and

“must be based on commonsense judgments and inferences about human behavior.” Illinois v.

Wardlow, 528 U.S. 119, 125 (2000); see also United States v. Arvizu, 534 U.S. 266, 273 (2002)

(reiterating that officers must be allowed to “draw on their own experience and specialized training

to make inferences from and deductions about the cumulative information available to them that

might well elude an untrained person”) (internal quotations omitted).

The Supreme Court has refused to adopt a “bright line” rule as to whether an investigative

detention is unreasonable, or a “hard-and-fast time limit for a permissible Terry stop.” United States

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v. Sharpe, 470 U.S. 675, 686 (1985). Instead, “common sense and ordinary human experience must

govern over rigid criteria.” Id. at 685. This involves taking into account “whether the police

diligently pursued a means of investigation that was likely to confirm or dispel their suspicions

quickly, during which time it was necessary to detain the defendant.” Id. at 686. “A court making

this assessment should take care to consider whether the police are acting in a swiftly developing

situation, and in such cases the court should not indulge in unrealistic second-guessing.” Id. Even

though alternative means may have been available to accomplish objectives of law enforcement,

“‘less intrusive means’ does not, itself, render the search unreasonable.” Id. at 687 (internal

quotations omitted). “The question is not simply whether some other alternative was available, but

whether the police acted unreasonably in failing to recognize or to pursue it.” Id.

The undersigned finds that Rynearson has failed to demonstrate either prong of the qualified

immunity analysis. The issue, essentially, is whether Lands and/or Perez unlawfully extended the9

stop beyond its permissible duration. First, the video shows that Rynearson was immediately

referred to secondary before the immigration inspection could occur. Noise or no noise, it is well

Rynearson contends that Defendants failed to even argue that the second prong of the qualified immunity9

analysis is at issue, and “with good reason,” because “[i]t has long been clearly established that a government agent

violates the Fourth Amendment when he extends the duration of an immigration checkpoint seizure beyond what is

reasonable for a brief inquiry into immigration status . . . when he fails to diligently pursue the purpose justifying the stop

. . . and when he extends the stop beyond a permissible duration in order to inquire into matters unrelated to the

justification for the seizure . . . .” Pl.’s Resp. at 6-7. This argument is both an oversimplification and misunderstanding

of the qualified immunity analysis. In Anderson v. Creighton, the Supreme Court clarified in an analogous context:

For example, the right to due process of law is quite clearly established by the Due

Process Clause, and thus there is a sense in which any action that violates that

Clause (no matter how unclear it may be that the particular action is a violation)

violates a clearly established right. Much the same could be said of any other

constitutional or statutory violation. But if the test of ‘clearly established law’ were

to be applied at this level of generality, it would bear no relationship to the

‘objective legal reasonableness’ that is the touchstone of Harlow.

483 U.S. at 639. Thus, it is certainly well established that law enforcement cannot unjustifiably extend the length of a

stop. However, the question is whether existing law made it sufficiently apparent that the particular acts in question were

unlawful.

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established that drivers can be referred to the secondary inspection area to conduct the initial

immigration inspection. Referrals “need not be justified by individualized suspicion and may be

based on factors, such as ethnicity, which would generally be deemed impermissible.” Machuca-

Barrera, 261 F.3d at 431 n.6 (citing Martinez-Fuerte, 428 U.S. at 563-64). Because the intrusion

upon motorists is minimal and an inquiry cannot feasibly be made upon every motorist when traffic

is heavy, border patrol agents are allowed wide discretion in selecting the motorists to be diverted

for the brief questioning involved. Martinez-Fuerte, 428 U.S. at 560. Therefore, “a border patrol

agent may refer a car to secondary for any reason (or no reason at all),” as long as “the length of the

detention is still limited by the immigration-related justification for the stop.” Machuca-Barrera,

261 F.3d at 434 n.29 (internal citations omitted).

Second, questions of vehicle ownership are within the scope of a permissible inquiry at an

immigration stop. See, e.g., United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir. 1993) (“[A]

few brief questions concerning such things as vehicle ownership, cargo, destination, and travel plans

may be appropriate if reasonably related to the agent’s duty to prevent the unauthorized entry of

individuals into this country and to prevent the smuggling of contraband.”); United States v. Ludlow,

992 F.2d 260, 265 n.4 (10th Cir. 1993) (finding these questions “reasonably related to the agent's

duties for identification purposes and because of the common use of stolen vehicles in smuggling

operations”).

Notwithstanding, courts “reject any notion that [an agent’s] questioning, even on a subject

unrelated to the purpose of a routine traffic stop, is itself a Fourth Amendment violation.” United

States v. Shabazz, 993 F.2d at 436; see also Machuca-Barrera, 261 F.3d at 434 (“To scrutinize too

closely a set of questions asked by a Border Patrol agent would engage judges in an enterprise for

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which they are ill-equipped and would court inquiry into the subjective purpose of the officer asking

the questions.”). This is because the Fourth Amendment “is concerned with ensuring that the scope

of a given detention,” not the subject matter of the questioning, “is reasonable under the totality of

the circumstances.” Brigham, 382 F.3d at 508. The questions about vehicle ownership only took a

few seconds and did not impermissibly delay the stop.

It is also well settled that the driver (and even occupants) of a lawfully stopped vehicle can

be ordered to step out of the car. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 111, 123 (1977)

(calling it a “de minimis” intrusion justified as a precautionary measure to protect the officer);

Maryland v. Wilson, 519 U.S. 408 (1997) (extending the holding in Mimms to passengers); Mollica

v. Volker, 229 F.3d 366 (2d Cir. 2000) (extending Mimms to vehicles stopped at checkpoints).

“Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the

driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be

the victim of an assault.” Mimms, 434 U.S. at 110. Ordering Rynearson out of the vehicle did not

violate his constitutional rights, and any delay caused by Rynearson’s refusal to comply was of his

own making. 10

It was more than reasonable for Lands and Perez to ask Rynearson to roll down his window

so they could hear him better. Although Rynearson makes conclusory statements that Lands lied

about not being able to hear, Lands swore in a declaration, which is competent summary judgment

evidence, that the sound of traffic impeded hearing. Furthermore, from an objective standpoint, any

Rynearson argues that he could only be ordered out of the vehicle in the case of a suspicion-based stop. Case10

law indicates that this is not the case; the stop need only be a lawful one such as at a permanent checkpoint. See Mollica,

229 F.3d 366; see also United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (a vehicle need only be lawfully stopped to

order occupants to exit). In any case, even assuming Rynearson is correct, the law is certainly not clearly established,

with at least one circuit court finding it permissible to order a driver out of his vehicle at a checkpoint. Furthermore, the

request did not delay the stop, as Lands did not persist with his request that Rynearson exit the vehicle.

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person who has driven through the Uvalde checkpoint knows the high level of traffic noise, and it

would surely be easier for Rynearson to hear the agents from within his vehicle than it would be for

the agents to hear Rynearson. Finally, rolling down the window allows an agent to gather needed

documents, quickly assess the credibility of the driver, and also helps to protect the agent by being

able to carefully monitor a potentially dangerous situation. The undersigned finds it illogical that

an officer can order a person out of his vehicle but cannot order him to roll down his window, and

there certainly isn’t any case law to the contrary. Therefore, any delay caused by Rynearson’s refusal

to roll down his window again was of his own making.

Also, drug sniffing dogs are often utilized at fixed checkpoints, and their use does not

constitute a search or a seizure, so long as the use of the dog does not extend the length of the stop

“beyond the time necessary to verify the immigration status of a vehicle’s passengers.” United States

v. Ventura, 447 F.3d 375, 378 (5th Cir. 2006). Rynearson does not contend that the use of a drug

dog extended the stop in any way.11

Rynearson makes much out of the fact that Lands never asked for his identification and did

not ask his immigration status until well into the stop. He also claims that he freely offered his

identification early on during the stop. The video, however, contradicts these assertions, and

Rynearson’s version of the facts thus need not be taken as true. Harris, 550 U.S. at 380. Lands

explicitly told Rynearson that Lands needed Rynearson to give him the forms of identification in

order to inspect them to make sure they were valid. Def. Ex. D, part 1, 2:06-10. Rynearson,

however, only placed them against the vehicle’s window but would not roll down his window to

hand anything over. Lands had no way to verify the authenticity of the forms of identification and

Whether or not it is standard policy to use a dog at the checkpoint is wholly irrelevant. 11

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therefore had no way to verify Rynearson’s citizenship. In addition, because of Rynearson’s12

combative behavior and refusal to get out of the car or roll down his window, Lands had no

opportunity to ask Rynearson his immigration status until later in the stop.

The undersigned also finds that reasonable suspicion developed at the inception of the stop,

thereby justifying additional detention until that suspicion was dispelled. Lands indicates that his

suspicions were raised by Rynearson’s combative and evasive behavior, and he thought Rynearson

could be acting as a decoy to divert the attention and resources of the agents while others passed

through the immigration checkpoint undetected. He also indicates that Rynearson could have been

refusing to roll down his window because he was hiding drugs in the door compartment. Lands

Decl., ECF No. 29-2 at 5.

The undersigned agrees that Rynearson’s conduct rose to the level of reasonable suspicion.

In United States v. Ludlow, 992 F.2d 260 (10th Cir. 1993), the court found that reasonable suspicion

existed where a motorist would not roll the window all the way down at a checkpoint and otherwise

acted nervously. Under those facts, the court agreed with the district judge that this behavior would

raise the suspicion that “there was an odor in the car that the driver did not want out.” Id. at 264.

Similarly, Rynearson keeping his window rolled up could have been a way to mask the smell of

drugs in the vehicle.

Furthermore, courts have long recognized the use of decoys at checkpoints to divert attention

The record also indicates that Lands wrote down information from the forms of identification that were sitting12

in the window, but the authenticity of the forms of identification still could not be verified. Furthermore, the military

ID and the driver’s license were inadequate to establish citizenship. Rynearson did not place his passports against the

glass until a supervisor had already been summoned.

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from other drivers. Keeping his window rolled up, refusing to exit his vehicle, constantly making13

phone calls, typing on his computer, being combative, and refusing to hand over identification more

than exceeds the threshold for reasonable suspicion that Rynearson was a decoy, an alien, an alien

smuggler, or a drug smuggler. Refusing to answer who his commanding officer was also added

doubt that Rynearson was actually in the military. Rynearson’s behavior as a whole was simply

amiss, and Lands’s commonsense judgments and inferences about Rynearson’s behavior would have

led a reasonable agent to the conclusion that criminal activity was being undertaken.

Citing to Shabazz, 993 F.2d 431, and several other cases, Rynearson seems to argue that he

was under no obligation to cooperate or answer any questions and should have been cleared to leave

immediately. See Pl.’s Resp., ECF No. 35. Citing First Amendment law and cases related to

refusing to consent to searches, he also seems to argue that his refusal to cooperate is his

constitutional right and cannot ever amount to reasonable suspicion to justify extending the stop.

See, e.g., City of Houston v. Hill, 482 U.S. 451, 462-63 (1987) (“The freedom of individuals verbally

to oppose or challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state.”); Machuca-Barrera, 261

F.3d at 435 n.32 (“The mere fact that a person refuses to consent to search cannot be used as

evidence in support of reasonable suspicion.”).

The undersigned finds no case law to support these contentions and finds cases cited by

See, e.g., Brignoni-Ponce, 422 U.S. 899, 913 (1975) (Burger, J., concurring) (noting the extensive use of13

decoys); United States v. Reyes, 227 F.3d 263, 266 n.1 (5th Cir. 2000) (“A ‘scout’ vehicle . . . is one which precedes a

‘load’ vehicle in transit through checkpoints. Load vehicles carry the principal shipment of narcotics, whereas scout

vehicles either serve as decoys by distracting border agents with a smaller amount of narcotics, or as lookouts by

informing the load vehicles when agents are nearby.”); United States v. Luz Garcia-Marquez, 141 F.3d 1186, at *3 (10th

Cir. 1998) (“Decoy cars, or ‘lead cars,’ seek to arouse agents' suspicions in order to divert attention away from ‘load cars’

traveling behind.”).

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Rynearson easily distinguishable. First of all, Rynearson was never asked to consent to a search.

Second, reasonable suspicion was based on the totality of the circumstances, not just Rynearson’s

refusal to cooperate with any single aspect of the stop.

Third, Rynearson did not sufficiently comply with the checkpoint requirements and was not

free to leave. In Shabazz, the appellants provided conflicting answers to questions posed by officers,

thereby creating reasonable suspicion to justify extending the stop. The Fifth Circuit noted that the

appellants were under no obligation to answer questions about their recent travels, but law

enforcement officers nonetheless were not restricted from asking such questions. As long as the

questions were asked before the completion of the investigation related to the stop, officers could

ask any questions they saw fit. In contrast with Shabazz, it cannot be disputed that Rynearson could

be detained until his identity and citizenship could be ascertained. To hold otherwise would be

contrary to Martinez-Fuerte, which upheld the validity of checkpoints in order to do just that.

Defendants could certainly ask for identification and ask questions related to citizenship and could

detain Rynearson until he complied.

Lands was not required to turn a blind eye to Rynearson’s suspicious behavior, and the stop

could be lengthened to accommodate its new justification, which would mean expanding the reach

of the stop to confirm or dispel evidence of drug or alien smuggling. At a standstill with Rynearson,

Lands summoned a supervisor, and a mere minutes later, Perez arrived. Again, agents must act

diligently, but a court should not indulge in unrealistic second-guessing of the methods utilized to

confirm or dispel suspicion. “The question is not simply whether some other alternative was

available, but whether the police acted unreasonably in failing to recognize or to pursue it.” Sharpe,

470 U.S. at 687. Rynearson has not pointed to any case law that would indicate calling an offsite

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supervisor violates clearly established constitutional rights. In fact, courts have upheld far longer

delays to summon drug sniffing dogs or additional personnel to aid in confirming or dispelling

reasonable suspicion. Importantly, in Sharpe, the Supreme Court found it reasonable for law

enforcement to detain a suspect pending the arrival of a DEA agent. Even though the DEA agent

was unrelated to the case and was simply consulted because of his expertise in drug smuggling, it

was deemed reasonable to delay a stop for over ten minutes to await his arrival. Similar to here,14

the Court found that the “delay in this case was attributable almost entirely to the evasive actions”

of the driver, and the “somewhat longer detention was simply the result of a graduated response to

the demands of the particular situation.” 470 U.S. at 688 (internal quotations and modifications

omitted). 15

Nor has Rynearson pointed to any case law that indicates calling military personnel to

confirm identification violates clearly established rights. This, in fact, appears to be a legitimate

means to quickly dispel suspicion of criminal wrongdoing. Because pilots in the Air Force are

extensively vetted, ascertaining Rynearson’s military status was a reasonable means to confirm his

identity and quickly dispel suspicion, thereby focusing limited resources more efficiently elsewhere.

See Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 186 (2004)

See also United States v. Franco-Martinez, 2011 WL 4340857, Crim. No. 11-204 (SRN/LIB) (D. Minn. Aug.14

30, 2011) (finding it reasonable for local law enforcement to contact a Spanish-speaking Border Patrol agent when a man

failed to produce valid identification during a routine traffic stop).

For examples of amounts of time deemed reasonable to summon a drug dog once reasonable suspicion arises,15

see, e.g., United States v. Donnelly, 475 F.3d 946, 953 (8th Cir. 2007) (“[U]nder the proper circumstances, we have

considered delays for dog-sniffs far in excess of 90 minutes reasonable.”); United States v. Glover, 957 F.2d 1004 (2d

Cir. 1992) (20 minutes for narcotics dog to arrive, 30 minutes to detain defendant to conduct brief questioning); United

States v. Mondello, 927 F.2d 1463 (9th Cir. 1991) (thirty minute detention of defendant and luggage to await narcotics

dog reasonable); United States v. Sullivan, 903 F.2d 1093, 1097-98 (7th Cir. 1990) (forty-five minute detention of

luggage for sniff test held reasonable); United States v. Knox, 839 F.2d 285 (6th Cir. 1988) (thirty minute detention of

defendants and luggage, followed by a sniff test, held reasonable).

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(“[K]nowing identity may help clear a suspect and allow the police to concentrate their efforts

elsewhere.”). Although “[c]omputerized license and registration checks are an efficient means to

investigate the status of a driver and his auto,” they “need not be pursued to the exclusion of, or in

particular sequence with, other efficient means.” Brigham, 382 F.3d at 511.

Rynearson, however, questions the amount of time it took to verify his identification and

citizenship and wants to depose Perez essentially to create a strict time line. The Supreme Court has

explicitly rejected this approach, holding that there is no constitutional stopwatch for immigration

checks. Sharpe, 470 U.S. at 686. Approximately ten minutes was not an objectively unreasonable

amount of time to both verify the authenticity of the forms of identification plus verify military

status. See United States v. Sanchez, 417 F.3d 971 (8th Cir. 2005) (finding reasonable a 45-minute

stop where the driver was evasive about his identity); United States v. Tuley, 161 F.3d 513 (8th Cir.

1998) (holding reasonable a stop that took twenty minutes to verify identification and confirm that

a warrant was still outstanding). Again, Perez was clearing Rynearson for potential alien and drug

smuggling, not just being in the country illegally. Once Rynearson’s identification and citizenship

were verified, the immigration stop was finally completed, and he was immediately free to leave. 16

Based on an assessment of all the facts, the stop took no longer than reasonably necessary

to complete an immigration inspection. It is true that the entire stop took approximately thirty-four

minutes, well above the average delay of checkpoint stops. But Rynearson was uncooperative, and

in fact combative, during the entire stop, thereby causing his delay. His behavior also created

reasonable suspicion that criminal activity was underfoot, justifying an even longer delay.

Neither agent ever refused any offering of a passport. Placing the passport up against a closed window without16

allowing physical inspection does not constitute offering a passport. And when Perez approached Rynearson for the first

time, Rynearson immediately handed him the passports, which Perez fully accepted.

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The undersigned concludes that Rynearson has not met his burden of demonstrating that

Defendants are not entitled to qualified immunity for the Fourth Amendment claims. Even

assuming any of the methods utilized by Defendants resulted in an unconstitutional seizure,

Rynearson has not cited to any case law that clearly establishes this. Because no rational trier of fact

could find for Rynearson, summary judgment in favor of Defendants should be granted. 17

D. Conspiracy, Failure to Intervene, and Supervisory Liability Claims

Defendants next argue that Rynearson’s conclusory allegations regarding supervisory

liability, conspiracy, and although not explicitly stated, failure to intervene, are unable to pass muster

under the Rule 12(b)(6) standard. Rynearson in response argues that these claims are indeed

sufficient to meet the Rule 12(b)(6) standards dictated in Iqbal and should not be dismissed.

The undersigned finds that these claims should be dismissed for failure to state a claim, or,

alternatively, summary judgment should be granted. To establish a claim for failure to intervene,

a plaintiff must demonstrate that an officer was present at the scene “and does not take reasonable

measures to protect a suspect from another officer’s use of excessive force . . . .” Hale v. Townley,

45 F.3d 914, 919 (5th Cir. 1995); see also Gilbert v. French, 364 F. App’x 76, 83 (5th Cir. 2010).

To establish a Bivens conspiracy claim, a plaintiff must establish: “(1) an actual violation of

a right protected under [Bivens] and (2) actions taken in concert by the defendants with the specific

intent to violate the aforementioned right.” Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999). “A

plaintiff must also ‘allege specific facts to show an agreement.’” Tebo v. Tebo, 550 F.3d 492, 496

(5th Cir.2008) (quoting Priester v. Lowndes County, 354 F.3d 414, 421 (5th Cir. 2004)). Mere

Although Rynearson argues that some of the facts are in dispute, the undersigned finds that the discrepancies17

are not material. “The mere existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”

Harris, 550 U.S. at 380 (internal quotations and citation omitted).

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conclusory allegations of conspiracy, absent reference to material facts, cannot constitute grounds

for Bivens relief. Id.; Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir.1987) (“Bald allegations

that a conspiracy existed are insufficient.”).

Finally, to establish Bivens supervisory liability for failure to prevent misconduct, a plaintiff

must show that the supervisor is directly responsible for the improper action. Iqbal, 556 U.S. at 677.

A government official is “only liable for his or her own misconduct,” and a plaintiff must show that

“each Government-official defendant, through the official’s own individual actions, has violated the

Constitution.” Id. at 676, 677; see also Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir.

1992) (“Well settled [Bivens] jurisprudence establishes that supervisory officials cannot be held

vicariously liable for their subordinates’ actions.”). “Supervisors who are simply negligent in failing

to detect and prevent subordinate misconduct are not personally involved.” Gossmeyer v.

McDonald, 128 F.3d 481, 495 (7th Cir. 1997). They must act either “knowingly or with deliberate,

reckless indifference.” Id. (internal quotations omitted).

Simply put, because Rynearson has not shown any clearly established constitutional

violation, he is likewise unable to establish a violation of a protected right, a necessary element for

a conspiracy claim, a failure to intervene claim, or a failure to supervise claim. See, e.g., Harper v.

Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) (“In order for there to be a failure to intervene, it

logically follows that there must exist an underlying constitutional violation . . . .”). Although

Defendants have not moved for summary judgment on these claims and instead seek dismissal

pursuant to Rule 12(b)(6), summary judgment is still an option. A court, after giving notice and a

reasonable time to respond, can “consider summary judgment on its own after identifying for the

parties material facts that may not be genuinely in dispute.” Fed. R. Civ. P. 56(f)(3). This report and

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recommendation should serve as sufficient notice.

Notwithstanding, the undersigned also finds that the allegations are insufficient to state a

claim under Rule 12(b)(6). Although it is true as Rynearson argues that heightened pleading is not

required, see Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.

163, 168 (1993), he must still plead enough facts to state a claim to relief that is plausible on its face.

Pleadings that are no more than conclusions are not entitled to the assumption of truth. Iqbal, 556

U.S. at 679. “Rule 8 does not empower respondent to plead the bare elements of his cause of action,

affix the label ‘general allegation,’ and expect his complaint to survive a motion to dismiss.” Id. at

687. Nor does Rule 8 “unlock the doors of a discovery for a plaintiff armed with nothing more than

conclusions.” Id. at 678-79.

First, there is no case law suggesting that a failure to intervene claim can arise under any

circumstances except when excessive force is used. There are no allegations of excessive force.

Second, Rynearson has not alleged any sort of agreement between Lands and Perez or anyone else

to establish a conspiracy claim. Nor is there any reference to supporting material facts. Although

Rynearson describes several other checkpoint stops that he contends resulted in illegal searches and

seizures, there are no allegations that Defendants participated in those searches and seizures or knew

about them.

In fact, the only allegations that could remotely support a conspiracy claim are that: (1) Perez

knew that Lands had not asked Rynearson about his citizenship; (2) Perez knew that Lands was

doing illegal searches and seizures of vehicles and persons at the checkpoint; (3) Perez knew Lands

was trying to do this to him and his vehicle; (4) both Perez and Lands knew that it was common

practice to do illegal searches and seizures of persons and vehicles at the checkpoint; and (5) both

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participated in the illegal searches and seizures. In Iqbal, however, the Court considered similar

conclusory allegations, where the plaintiff alleged that the defendants “knew of, condoned, and

willfully and maliciously agreed” to subject the petitioner to harsh conditions of confinement as a

matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate

penological interest.” 556 U.S. at 680. The Court found these claims too conclusory in nature to

entitle them to any presumption of truth. Id. at 681. Similarly, Rynearson’s conclusory allegations

should not be entitled to any presumption of truth.

Furthermore, Rynearson has not stated a claim for supervisory liability. The only allegation

is that Perez was discharging his supervisory duties at the time of his detention but failed to

supervise Lands. There are no allegations that Perez was personally involved in any of the acts of

Lands or that Perez acted deliberately or with reckless indifference. Thus, if summary judgment is

not granted, any of these claims can be dismissed for failure to state a claim for which relief can be

granted.

E. Request for Stay for Purposes of Limited Discovery

The final issue is whether the Court should stay the present motion to allow Rynearson to

conduct limited discovery. Again, to permit discovery and delay ruling on a qualified immunity

defense, the court must first find“that the plaintiff’s pleadings assert facts which, if true, would

overcome the defense of qualified immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994

(5th Cir. 1995). Only after the Court makes this determination, “if the court remains ‘unable to rule

on the immunity defense without further clarification of the facts,’ it may issue a discovery order

‘narrowly tailored to uncover only those facts needed to rule on the immunity claim.’” Id. (quoting

Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. 1987)).

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The undersigned finds that Rynearson has failed to make the requisite showing. His

pleadings do not overcome the defense of qualified immunity because they fail to demonstrate the

violation of a clearly established constitutional right. Furthermore, as detailed in full above,

Rynearson’s sought-after discovery would not aid in defeating such a defense. Because discovery18

would be futile, Rynearson’s motion to stay should be denied.

III. CONCLUSION

For the foregoing reasons, Defendants Lands and Perez’s motion to dismiss and motion for

summary judgment should be GRANTED. Rynearson is unable to state: (1) a claim for violations

of the Fifth, Sixth, or Fourteenth Amendments, (2) a constitutional claim for false imprisonment, or

(3) claims for conspiracy, failure to intervene, or supervisory liability. Therefore, these claims

should be dismissed pursuant to Rule 12(b)(6). Proper summary judgment evidence also establishes

that Defendants are entitled to qualified immunity for any Fourth Amendment claims or related

claims for conspiracy, failure to intervene, and supervisory liability. Therefore, judgment in favor

of Defendants for these claims is also proper.

Finally, the undersigned finds that the Court can adequately rule on the qualified immunity

defense without further clarification of the facts. Rynearson’s pleadings simply do not draw a

reasonable inference that Defendants have violated his constitutional rights. Accordingly,

Rynearson’s motion to continue and request for discovery should be DENIED.

It is important to note that most of the sought-after discovery information involves either policy and procedure,18

or Defendants’ subjective motivations. Border patrol policies are not at all at issue under these facts and allegations.

In addition, “so long as police do no more than they are objectively authorized and legally permitted to do, their motives

in doing so are irrelevant and hence not subject to inquiry.” United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.

1987) (en banc); see also Whren v. United States, 517 U.S. 806, 811 (1996) (finding that subjective intent is irrelevant,

so long as the initial stop was legitimate).

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IV. NOTICE

The United States District Clerk shall serve a copy of this report and recommendation on all

parties either by (1) electronic transmittal to all parties represented by an attorney registered as a

filing user with the Clerk of Court pursuant to the Court’s Procedural Rules for Electronic Filing in

Civil and Criminal Cases; or (2) certified mail, return receipt requested, to any party not represented

by an attorney registered as a filing user. Pursuant to 28 U.S.C. § 636(b)(1), any party who wishes

to object to this report and recommendation may do so within fourteen days after being served with

a copy. Failure to file written objections to the findings and recommendations contained in this

report shall bar an aggrieved party from receiving a de novo review by the District Court of the

findings and recommendations contained herein, see 28 U.S.C. § 636(b)(1)(c), and shall bar an

aggrieved party from appealing “the unobjected-to proposed factual findings and legal conclusions

accepted by the District Court” except on grounds of plain error. Douglass v. United Servs. Auto.

Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).

SIGNED on June 27, 2013.

_____________________________________

COLLIS WHITEUNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

MAJOR RICHARD RYNEARSON, Plaintiff,

v.

UNITED STATES OF AMERICA;AGENT LANDS, Border Patrol Agent,Individually; and RAUL PEREZ,Border Patrol Agent, Individually, Defendants.

§§§§§§§§§§

Civil Action No. 2:12-CV-024–AM–CW

ORDER

Pending before the Court is Defendant United States of America’s Opposed Motion to Stay

Discovery and Scheduling Order Recommendations (ECF No. 28) and Defendants Lands and Perez’s

Opposed Motion to Stay Discovery and Scheduling Order Recommendations (ECF No. 30). After

reviewing the motions, they are hereby GRANTED. It is therefore ORDERED that the

requirements and deadlines imposed by Federal Rules of Civil Procedure 16 and 26 and Local Rule

CV-16 are suspended until such time as the Court reviews the reports and recommendations

currently pending and issues a final ruling on Defendants’s dispositive motions.

SIGNED and ENTERED on June 28, 2013.

_____________________________________

COLLIS WHITEUNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

MAJOR RICHARD RYNEARSON, Plaintiff,

v.

UNITED STATES OF AMERICA;AGENT LANDS, Border Patrol Agent,Individually; and RAUL PEREZ, BorderPatrol Agent, Individually, Defendants.

§§§§§§§§§§§

Civil Action No. DR-12-CV-24-AM/CW

ORDER

Pending before the Court is the Report and Recommendation of the Honorable Collis White,

United States Magistrate Judge, recommending that this Court grant the Motion to Dismiss All

Claims Asserted Against Defendants Border Patrol Agent Justin K. Lands and Supervisory Border

Patrol Agent Raul Perez (ECF No. 29), and that it deny the Plaintiff’s Motion for Continuance from

Summary Judgment to Conduct Discovery (ECF No. 34). Plaintiff Major Richard Rynearson filed

objections to the Report on July 25, 2013. (ECF No. 45.) After conducting a de novo review of the

relevant filings, this Court ADOPTS the Magistrate Judge’s Report and Recommendation,

GRANTS the Defendants’ motion to dismiss, GRANTS the motion for summary judgment that was

filed jointly with the Defendants’ motion to dismiss, and DENIES the Plaintiff’s motion to continue

summary judgment in order to conduct limited discovery for the purposes of qualified immunity.

I. UNDISPUTED FACTS AND PROCEDURAL HISTORY1

On March 18, 2010, Plaintiff Richard Rynearson, a Major in the United States Air Force, was

These facts come from the pleadings, as well as, a video submitted by the Defendants that Rynearson recorded1

during the March 18, 2010 stop at the Uvalde County, Texas checkpoint. (ECF No. 38.) The video was posted onYoutube as well as http//www.pickyourbattles.net.

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traveling east on Highway 90 when he reached a fixed immigration checkpoint located in Uvalde

County, Texas, approximately 67 miles from the United States-Mexico border. United States Border

Patrol Agent Justin K. Lands approached the vehicle and asked Rynearson if he was the owner.

Through the window, which was only slightly cracked, Rynearson answered “yes”. Agent Lands

then asked Rynearson to lower his window more, if possible, which prompted Rynearson to roll the

driver’s side window down a little further. In this initial interaction, lasting mere seconds, Agent

Lands did not ask any questions about Rynearson’s citizenship. Agent Lands proceeded to direct

Rynearson to the secondary inspection area, referencing the heavy amount of traffic behind

Rynearson in the checkpoint line.

While relocating his car to the secondary inspection area, Rynearson completely closed his

window. Approximately thirty seconds later, Agent Lands again approached Rynearson’s vehicle,

this time asking Rynearson to exit the vehicle. Rynearson refused and, through the closed window,

questioned Agent Lands as to the reason for that request. Agent Lands asked Rynearson to lower

his window because the noise from the vehicle traffic on Highway 90 and in the checkpoint area

impeded his ability to hear. Despite numerous requests, Rynearson adamantly refused to roll down

the window. Instead, he repeatedly asked Agent Lands if he was detaining him and, if so, on what

grounds.

When Agents Lands asked Rynearson for his identification, Rynearson placed his license and

military identification up against the glass, still refusing to roll down the window; Rynearson

continued to do this even when Agent Lands informed him that he would need to physically inspect

the documents to ensure that they were valid. Agent Lands stated that he would explain the reasons

for Rynearson’s detention if he would exit the vehicle, but again Rynearson refused to step out of

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the car or roll down the window, prompting Agent Lands to state that they would have “to do this

the hard way.” Nearby, other agents noticed and pointed out the multiple video cameras installed

in various locations in Rynearson’s car.

Rynearson continued to inquire about his detention through his closed window. When Agent

Lands stated that he was experiencing difficulty hearing him, Rynearson retorted that Agent Lands

could hear clearly. Agent Lands informed Rynearson that he was not satisfied as to his immigration

status at that point because his behavior, such as refusing to roll down the window, was atypical of

a United States citizen, and he further explained that Rynearson’s actions were evasive. After

Rynearson persisted in challenging Agent Lands’s explanations, Agent Lands walked away from the

vehicle.

During Agent Lands’s absence, Rynearson initiated one of several phone calls, including a

call to the San Antonio office of the FBI, claiming that the agents did not have reasonable suspicion

to search his vehicle, that he did not know why he was referred to secondary, that he did not want

to lower his window, that he felt threatened by the agents, and that he believed they recognized him

from previous trips through the checkpoint.

Approximately ten minutes after the initial encounter with Agent Lands, Rynearson lowered

his window slightly and informed Agent Lands that, according to the FBI, the agents must have

reasonable suspicion before searching the vehicle. A discussion ensued as to the legal standards

required by Border Patrol to detain a person at a checkpoint. Rynearson asked Agent Lands if he

thought that he was not a United States citizen, and Agent Lands responded, explaining that neither

the driver’s license nor military identification were appropriate immigration documents. Rynearson

asked Agent Lands whether he wanted his passport, but Agent Lands did not acknowledge the offer.

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At this point, for the first time, Agent Lands asked if Rynearson was a United States citizen, to which

he answered “yes”. The conversation quickly returned to a discussion about Rynearson’s detention.

When Rynearson began to challenge Agent Lands’s articulable reasons for the detention, Agent

Lands informed him that a supervisor had been summoned and would be arriving to the checkpoint

momentarily to discuss the situation with Rynearson. As Agent Lands walked away, Rynearson

placed his two passports (official and personal) against the driver’s side window, next to his other

identification documents.

When Supervisory Border Patrol Agent Raul Perez arrived at the Uvalde checkpoint from

an off-site location, he approached the vehicle and asked Rynearson to hand him both passports.

When Agent Perez asked Rynearson why he refused to answer questions about his citizenship at

primary, Rynearson stated that he was not asked any immigration questions until later and further

informed Agent Perez that he had captured the entire encounter on videotape if Agent Perez wished

to see what had transpired. Agent Perez next inquired into the identity of Rynearson’s commanding

officer. Rynearson refused to provide the information and accused Agent Perez of attempting to

interfere with his employment. Agent Perez stated that the agents would validate the passports and

then left the secondary area.

Again, Rynearson made multiple phone calls, including one to the Border Patrol headquarters

in Washington, D.C., expressing concern about his unlawful detention. While Rynearson was still

on the phone, Agent Perez returned and stated that he was going to call the Provost Marshal and

CID, to which Rynearson responded “okay.”

Agent Perez returned the passports to Rynearson approximately thirteen minutes later and

informed him that he was free to go. He suggested that Rynearson cooperate with agents next time

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and reminded him that the checkpoint was extremely noisy due to its proximity to the highway.

Agent Perez also explained that physically handing the documents to the agents would facilitate

future inspections because they must verify that they are authentic documents.

The entire stop lasted approximately 34 minutes. Rynearson never exited his vehicle and no

searches were conducted.

On September 14, 2010, Rynearson submitted an administrative claim to U.S. Customs and

Border Protection pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., seeking

$500,000 in damages as a result of the March 18, 2010 immigration stop. (ECF No. 27-2, Exhibit

B.) Rynearson’s administrative claim was denied on January 7, 2011. (ECF No. 27-4, Exhibit D.)

Following the denial of his administrative claim, Rynearson filed suit in this Court on March 16,

2012. (ECF No. 1.) On August 23, 2012, he filed a first amended complaint. (ECF No. 23.)

In his amended complaint, Rynearson alleges the following causes of action: (1) Count One:

negligence and/or gross negligence; (2) Count Two: false arrest and imprisonment; (3) Count Three:

intentional infliction of emotional distress; (4) Count Four: violation of Rynearson’s rights under the

Fourth, Fifth, Sixth, and Fourteenth Amendments based on an unreasonable seizure resulting from

an extended immigration stop; (5) Count Five: Bivens action-false imprisonment/unreasonable

search and seizure; (6) Count Six: Bivens action-failure to intervene/supervise; and (7) conspiracy

to violate Rynearson’s Fourth Amendment rights.

On September 24, 2012, Defendants Lands and Perez filed a combined motion to dismiss and

motion for summary judgment as to all claims. (ECF No. 29.) In their motion, they state that2

Counts One, Two, and Three have already been resolved as to Agent Lands and Agent Perez. On August 3, 2012, the2

United States filed a notice of substitution of the United States for the agents for the tort claims pursuant to 28 U.S.C.§ 2679. (ECF No. 17.) The United States certified that both agents were acting in the scope and course of their

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Rynearson has failed to state a claim for violations of his Fifth, Sixth, and Fourteenth Amendment

rights, thus leaving the Fourth Amendment claim as the only viable constitutional cause of action.

Next, the Defendants argue that their actions at the immigration checkpoint were objectively

reasonable, and summary judgment is appropriate as to the Fourth Amendment claim because they

are therefore entitled to qualified immunity. Finally, the Defendants contend that the remaining

claims, conspiracy and supervisory torts, fail because there is no underlying constitutional violation.

Alternatively, they argue that even if there is a constitutional violation, the conspiracy and

supervisory liability causes of action must be dismissed for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure.

Before responding to the motion to dismiss/motion for summary judgment, Rynearson filed

a motion for continuance from summary judgment to conduct discovery. Rynearson contemplates

a number of areas to he would like to investigate if given the opportunity to engage in discovery;

specifically, he plans to (1) depose Agent Lands and Agent Perez in order to investigate their

declarations prepared for summary judgment evidence, and (2) request videos and reports from the

March 18, 2010 incident. (ECF No. 34.)

On October 15, 2012, Rynearson responded substantively to the Defendants’ motion, arguing

that (1) the agents are not entitled to qualified immunity because the duration of the stop exceed its

constitutional limits; (2) the Defendants’ motion for summary judgment is premature because there

are genuine issues of material fact and he has not been permitted to conduct discovery; and (3) the

respective positions as United States Border Patrol Agents during the time period alleged in the complaint. (ECF Nos.17-1, 17-2.) On August 30, 2012, an order substituting the United States for Agent Lands and Agent Perez was enteredas to all claims that would properly fall under the Federal Tort Claims Act, specifically Counts One, Two, and Three ofthe amended complaint. (ECF No. 25.)

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claims for supervisory liability and conspiracy are well-pleaded under Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007). (ECF No. 35.)

After reviewing the motion to dismiss/motion for summary judgment, the motion to continue

summary judgment, and other pertinent filings, the Honorable Collis White, United States Magistrate

Judge, issued a Report and Recommendation. In his Report, he recommends to this Court that the

motion to dismiss/summary judgment be granted in full because (1) the Plaintiff does not state a

cause of action for violations under the Fifth, Sixth, or Fourteenth Amendments; (2) the Defendants

are entitled to qualified immunity because their actions, tested under the Fourth Amendment

standards, were reasonable; and (3) the Plaintiff’s claims for conspiracy, failure to intervene and

supervisory liability claims do not survive a Rule 12(b)(6) analysis. The Magistrate Judge also

recommends that the motion to continue summary judgment be denied because Rynearson failed to

prove that he is entitled to limited discovery at this stage of the proceedings.

Rynearson filed the following objections to the Report: (1) it was error to conclude that

Rynearson was uncooperative or that the stop transitioned into a Terry v. Ohio, 392 U.S. 1 (1968)

stop; (2) the extension of the stop was not justified because there was no reasonable suspicion that

Rynearson was involved in criminal misconduct; (3) a 34-minute immigration stop was not

permissible on the grounds that Rynearson did not proactively prove his citizenship; (4) the duration

of the stop exceeded the time it took to actually verify Rynearson’s citizenship; (5) it was error to

determine that Rynearson failed to state a claim for conspiracy; and (6) the Report incorrectly

concludes that Rynearson is not permitted to conduct limited discovery. 3

Rynearson states that he does not object to the recommendation of dismissal of the alleged causes of action3

under the Fifth, Sixth, and Fourteenth Amendments or for supervisory liability. He requests leave to amend thecomplaint to combine Count Four and Count Five into one count to state a Bivens claim for a Fourth Amendment

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II. Standard of Review

When a party files an objection to any part of a magistrate judge’s report and

recommendation, the district court must undertake a de novo review of the conclusions to which the

party objects. 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of

those portions of the report or specified proposed findings or recommendations to which objection

is made.”). In performing a de novo review, a district court must conduct its own analysis of the

applicable facts and legal standards and is not required to give any deference to the magistrate

judge’s findings. See United States v. Raddatz, 447 U.S. 667, 689 (1980) (Stewart, J., dissenting)

(“The phrase ‘de novo determination’ has an accepted meaning in the law. It means an independent

determination of a controversy that accords no deference to any prior resolution of the same

controversy.”).

For findings where there are no objections made, the Court must only determine whether the

report and recommendation is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d

1219, 1221 (5th Cir. 1989).

III. Legal Analysis

The Defendants seek dismissal of the pending constitutional claims involving the Fifth,

Sixth, and Fourteenth Amendments for an unreasonable search as well as the conspiracy and

supervisory liability causes of action. Additionally, they request summary judgment on the Fourth

Amendment claim. Because the analysis of the alleged Fourth Amendment violation may affect

other causes of action, this Court will address this part of Count Four first.

violation. These Counts are discussed infra at pp. 18-20.

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A. Count Four: Unreasonable Seizure under the Fourth Amendment

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Topalian v.

Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992). A genuine dispute about a material fact exists when

“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Courts must ordinarily view the facts

in the light most favorable to the nonmovant. See United States v. Diebold, Inc., 369 U.S. 654, 655

(1962). However, conclusory allegations or unsubstantiated claims are not afforded deference during

a summary judgment analysis. See Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).

Furthermore, courts do not have to blindly accept the facts presented by the nonmovant as true when

they are “blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v.

Harris, 550 U.S. 372, 381 (2007). In cases where the alleged events are captured by videotape, a

court should not view the nonmovant’s facts favorably “where the record discredits that description

but should instead consider ‘facts in the light depicted by the videotape.’” Carnaby v. City of

Houston, 636 F.3d 186, 187 (5th Cir. 2011) (citing Scott, 550 U.S. at 381).

An officer sued under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),

may assert qualified immunity as an affirmative defense. See Wilson v. Layne, 526 U.S. 603, 609

(1999). Qualified immunity protects government officials from “liability for civil damages insofar

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); Wilson,

526 U.S. at 609 (performing qualified immunity analyses identically for both Bivens actions and 42

U.S.C. § 1983 claims). It provides “immunity from suit rather than a mere defense to liability.”

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Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in the original). Because the protections

are lost if a case erroneously proceeds to trial, immunity questions should be resolved by courts at

the earliest stage possible. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

A defendant may invoke qualified immunity if he demonstrates that the alleged conduct

occurred while he was “acting ‘in his official capacity and within the scope of his discretionary

authority.’” Cronen v. Texas Dept. of Human Services, 977 F.2d 934, 939 (5th Cir. 1992) (quoting

Garris v. Rowland, 678 F.2d 1264, 1271 (5th Cir. 1982)). Once the defendant establishes that he

acted in his official capacity, courts use a two-prong test to evaluate the qualified immunity claim:

(1) has the plaintiff alleged facts that, if true, demonstrate a constitutional violation, and (2) was the

constitutional right clearly established at the time of the alleged violation? Pearson v. Callahan, 555

U.S. 223, 232 (2009). If the plaintiff cannot satisfy his burden as to both prongs, qualified immunity

will attach, protecting officials from unwarranted “harassment, distraction, and liability.” Pearson,

555 U.S. at 231; McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (shifting the

burden to the plaintiff to show qualified immunity is inapplicable after the defendant raises the

defense). Using its discretion, a court may begin its analysis with either prong, Pearson, 555 U.S.

at 236, but if the plaintiff does not prove a constitutional violation, the inquiry immediately ends.

See Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003).

For a constitutional right to be “clearly established,” “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Thus, notice is the linchpin of the second

prong; and while it is not a prerequisite for the specific act in question to have been previously

deemed unlawful, its unlawfulness “in light of pre-existing law . . . must be apparent.” Id. “The

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qualified immunity standard gives ample room for mistaken judgments by protecting all but the

plainly incompetent or those who knowingly violate the law.” Mendenhall v. Riser, 213 F.3d 226,

230 (5th Cir. 2000) (internal quotations omitted).

Discovery is generally not permitted until after completion of the qualified immunity analysis

to “spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed

upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991);

Mitchell, 472 U.S. at 526 (“[E]ven such pretrial matters as discovery are to be avoided if possible,

as [i]nquires of this kind can be peculiarly disruptive of effective government.” (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 817 (1982))).

However, the plaintiff is entitled to conduct discovery if he “has supported his claim with

sufficient precision and factual specificity to raise a genuine issue as to the illegality of [the]

defendant’s conduct at the time of the alleged acts.” Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.

1995). Defendants are not protected from “all discovery but only from discovery which is either

avoidable or overly broad.” Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987). If the

qualified immunity analysis involves a factual question, narrowly tailored discovery may be

permitted. Id.

Because the Defendants satisfied their initial burden of showing that the incident occurred

while they were acting in their official capacity, this Court must now determine whether Rynearson

alleged facts that, if true, establish a violation of his Fourth Amendment right to be free from an

unreasonable seizure.

The Fourth Amendment guarantees “the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

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A seizure occurs when a person is required to stop at an immigration checkpoint. See United States

v. Martinez-Fuerte, 428 U.S. 543, 556 (1976). Thus, under the Fourth Amendment, the essential

inquiry is whether or not the stop is reasonable. See Elkins v. United States, 364 U.S. 206, 222

(1960) (“It must always be remembered that what the Constitution forbids is not all searches and

seizures, but unreasonable searches and seizures.” (emphasis added)). Reasonableness is determined

by balancing the public interest against an individual’s right to be free from “arbitrary interference

by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citing Terry v. Ohio,

392 U.S. 1, 20 (1968)).

In Martinez-Fuerte, the Supreme Court examined the constitutionality of suspicionless stops

of vehicles at fixed immigration checkpoints. 428 U.S. at 555. Weighing the intrusion of a

motorist’s right to travel without interruption against the established governmental interest of

controlling the flow of illegal aliens into the interior of the country, the Court determined that stops

can be made “in the absence of any individualized suspicion at reasonably located checkpoints.” Id.

at 562. The public interest in routine stops at fixed checkpoints is considerable because “these

checkpoints are located on important highways; in their absence such highways would offer illegal

aliens a quick and safe route into the interior.” Id. at 556-57. The agent’s limited questioning will

only momentarily interrupt the traveler’s passages. See Brignoni-Ponce, 422 U.S. at 879 (“[A]ll that

is required of the vehicle’s occupants is a response to a brief question or two and possibly the

production of a document evidencing a right to be in the United States.”).

The mere referral of vehicles to the secondary inspection area of a checkpoint does not

impermissibly lengthen the stop, as the intrusion to the traveler remains minimal. Id. at 560.

“Whether the routine checkpoint stop is conducted at primary, secondary or both is irrelevant to

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Fourth Amendment concerns.” United States v. Rascon-Ortiz, 994 F.2d 749, 753 (10th Cir. 1993).

Therefore, an officer may refer a motorist to the secondary inspection area for any reason, or for no

reason, because it does not extend the length of the stop. United States v. Machuca-Barrera, 261

F.3d 425, 435 n.32 (5th Cir. 2001).

The duration of a stop by law enforcement officials is limited by the purpose for the original

stop. Id. at 432. (“It is the length of the detention, not the questions asked, that makes a specific

stop unreasonable.”). Therefore, “[t]he scope of an immigration checkpoint stop is limited to the

justifying, programmatic purpose of the stop: determining the citizenship status of persons passing

through the checkpoint.” Id. at 433.

Absent consent, an officer may only permissibly extend the duration of the stop if he

develops reasonable suspicion that other criminal activity is afoot. Id. at 434; see also United States

v. Arvizu, 534 U.S. 266, 273 (2002). The reasonableness of the officer’s determination to continue

the detention of an individual rests on “specific reasonable inferences which he is entitled to draw

from facts in light of his experience.” Terry v. Ohio, 392 U.S. 1, 27 (1968). This reasonableness

analysis gives credence to an officer’s experience because “common sense and ordinary human

experience must govern over rigid criteria.” United States v. Sharpe, 470 U.S. 675, 685 (1985).

When evaluating reasonableness, courts examine “the totality of the circumstances–the whole

picture” instead of viewing each action in isolation. United States v. Scroggins, 599 F.3d 433, 441

(5th Cir. 2010) (internal quotations omitted). “This process allows officers to draw on their own

experience and specialized training to make inferences from and deductions about the cumulative

information available to them that might well elude an untrained person.” Arvizu, 534 U.S. at 273.

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To determine the acceptable length of investigative stops, “it is appropriate to examine

whether the police diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to detain the defendant.” Sharpe, 470

U.S. at 686. Courts are cautioned to avoid “second guessing” the officers’ chosen methods of

investigation and should instead look to see “if the police acted unreasonably in failing to recognize

or to pursue [an alternative method].” Id.

Viewing the undisputed facts in the light most favorable to the Plaintiff, this Court finds that

Rynearson has failed to satisfy his burden under the quality immunity analysis because he cannot

show that Agent Lands or Agent Perez subjected him to an unreasonable seizure. The Supreme

Court, in Martinez-Fuerte, created an exception to the Fourth Amendment to allow agents to conduct

brief immigration investigations at permanent immigration checkpoints, like the fixed checkpoint

in Uvalde County, Texas where Rynearson was stopped on March 18, 2010. Within ten seconds4

of his arrival, Rynearson, without being asked any immigration-related questions, was referred to

the secondary inspection area. Agents have the discretion to direct travelers to secondary without

reasonable suspicion or probable cause. See United States v. Chacon, 330 F.3d 323, 326-27 (5th Cir.

2003). Although an officer does not need to articulate his reasons for directing a vehicle to

secondary, Agent Lands explained to Rynearson that traffic was backing up behind him in the

primary checkpoint area.

Because the conditions surrounding Rynearson’s initial stop and referral to secondary satisfy

Fourth Amendment requirements, the analysis next turns on the duration of the stop. The

Rynearson does not challenge the constitutionality of a fixed immigration checkpoint; instead, he challenges4

the overall duration of his own detention.

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constitutional gravamen of a Fourth Amendment seizure claim is the overall length of the stop in

relation to its stated purpose. Martinez-Fuerte, 428 U.S. at 568 (“The principal protection of the

Fourth Amendment rights at checkpoints lies in the appropriate limitations on the scope of the stop,”

and not the questions asked.). Although an immigration checkpoint’s suspicionless stop is premised

on the minimal intrusion into a person’s privacy, no court has delineated a bright line rule for the

precise time limit for such a stop. The brevity of Agent Lands’ initial questions did not wrongfully

extend the duration of the stop. See United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir.

1993) (permitting agents to ask brief questions relating to things such as vehicle ownership,

destination, and travel plans). Rynearson’s accusation that he was sent to secondary so agents could

do an illegal search is irrelevant. “The permissible duration of a suspicionless detention . . . [is]

determined by objective factors, not by the subjective motivation or state of mind of the specific

individual officers conducting the stop and related examination or questioning on the particular

occasion at issue.” United States v. Jaime, 473 F.3d 178, 183 (5th Cir. 2006).

Rynearson contends that it is not standard practice to require an individual to roll down his

window or exit his vehicle during an immigration inspection. However, he does not cite to any case

law indicating that either request would amount to a violation under the Fourth Amendment. The

Supreme Court determined that a minimal intrusion is constitutionally appropriate in light of the

great importance of stemming the flow of illegal immigrants into the country. See Martinez-Fuerte,

428 U.S. at 557. Brief questioning of the motorists is an acceptable and contemplated minimal

invasion. See Brignoni-Ponce, 422 U.S. at 880 (“[A]ll that is required of the vehicle’s occupants

is a response to a brief question or two . . . .”). Therefore, it is consistent with the purpose of the

checkpoint to allow an agent to make reasonable requests of an individual in order to facilitate the

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asking of requisite immigration questions. Agent Lands repeatedly told Rynearson that he could not

adequately hear him through the closed window, which impeded his ability to communicate with him

and satisfy the intended purpose of the immigration checkpoint. Requiring a motorist to exit the

highway and pass through an immigration checkpoint is not an overly invasive request, and it would

be improper to hold that requesting a person to lower his window is more intrusive or inappropriate

than the initial stop.

An agent’s request for a motorist to exit the vehicle does not intrude so strongly on his

privacy and personal security that Fourth Amendment concerns would be implicated. See

Pennsylvania v. Mimms, 434 U.S. 106, 111 (weighing the level of intrusion when ordering a driver

to get out of the vehicle). The additional invasion in answering questions outside of the vehicle

instead of inside of the vehicle “can only be described as de minimis.” Id. Whether or not the

request to exit the vehicle follows a suspicionless stop or one with probable cause is irrelevant to this

analysis. Id.

Rynearson centers his unwarranted detention allegation on the fact that Agent Lands did not

ask for either his immigration status or his identification until approximately ten minutes into the

stop. Looking at the totality of the circumstances, this Court finds that Rynearson’s own actions, and

not the lack of diligence on the part of Agent Lands, was the sole reason for any delay in determining

immigration status. Agent Lands, from his initial interaction with Rynearson, expressed difficulty

in hearing him through the window, which was slightly cracked in primary inspection and

completely closed for a period of time while he was in secondary. When Agent Lands did have an

opportunity to ask for identification, Rynearson refused to hand his license or military identification

to him; he instead pressed them up against the glass, preventing Agent Lands from properly

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determining their authenticity. As the stop continued, Rynearson remained combative, arguing with

Agent Lands about the appropriate legal standard for searches and seizures as well as accusing the

agent of lying about his inability to hear. Realizing that he could not communicate effectively with

Rynearson, Agent Lands summoned a supervisor to take over the stop.

Furthermore, reasonable suspicion developed at the checkpoint as a result of Rynearson’s

actions (and inactions). An officer must have a “particularized and objective basis for suspecting the

particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18

(1981). Rynearson refused to roll down his window, repeatedly challenged the agents, made multiple

phone calls while in secondary, refused to exit the vehicle, and refused to immediately turn over his

identification. Agent Lands expressed concern that Rynearson may have tried to avoid rolling down

the window because he may have drugs hidden in the door compartment. (See Decl. of Agent Lands,

ECF No. 29-2 at 6). The refusal of a driver to lower his window combined with other atypical

behavior has been found to support the finding of a suspicion that “there was an odor in the car that

the driver did not want out.” United States v. Ludlow, 992 F.2d 260, 264 (10th Cir. 1993).

Additionally, Rynearson’s combative behavior raised Agent Lands’s suspicions to another

possibility: that Rynearson might have been attempting to distract the agents at the checkpoint to

permit a load of contraband to pass through undetected. See United States v. Luz Garcia-Marquez,

141 F.3d 1186, at *3 (10th Cir. 1998) (explaining that one of the purposes of the decoy vehicle is

to “arouse agents’ suspicions in order to divert attention away from ‘load cars’ traveling behind.”).

“[O]fficers are not required to close their eyes to indications of possible wrongdoing that are

disclosed at roadblocks.” United States v. Diaz–Albertini, 772 F.2d 654, 658 (10th Cir. 1985).

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In his motion, Rynearson contends that requiring an individual to cooperate with agents at

an immigration checkpoint impermissibly reverses the burdens under the Fourth Amendment. An

agent must diligently pursue “a means of investigation that [is] likely to confirm or dispel” any

suspicions of wrongdoing quickly. United States v. Macias, 658 F.3d 509, 522 (5th Cir. 2011).

However, delays attributable to the evasive actions of an individual justify the extension of the

detention in order to address the challenges outside of the officer’s control. See Sharpe, 470 U.S.

675, 688 (1985). Rynearson’s own actions in refusing to lower his window, refusing to exit the

vehicle, challenging the agent’s authority, and refusing to hand over identification cards impeded the

agent’s efforts to complete his investigation.

Rynearson argues that the Fourth Amendment does not require an individual to answer

questions from law enforcement officers. See Hiibel v. Sixth Judicial Dist. Court of Nevada,

Humboldt County, 542 U.S. 177, 187 (2004). However, courts have expected individuals to respond

to officers stationed at immigration checkpoint when they weigh the personal intrusion against the

public interest. See United States v. Brignoni-Ponce, 422 U.S. 873, 879 (1975) (“[A]ll that is

required of the vehicle’s occupants is a response to a brief question or two and possibly the

production of a document evidencing a right to be in the United States.”). Furthermore, the issue

at hand is not his refusal to answer questions, it is his combative behavior that raised the suspicions

of the agents and prohibited them from asking questions.

Although Rynearson relies on his military status to argue that the agents should have known

that he was a United States citizen, he then tries to argue that it is a constitutional violation to contact

a supervisor with knowledge of his military status to confirm his citizenship. (See ECF No. 35-1 at

para. 19) (accusing Perez of “ignoring [his] military ID card showing Richard was a military officer

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and, therefore, a U.S. citizen as all military officers are U.S. citizens.”). Although “[c]omputerized

license and registration checks are an efficient means to investigate the status of a driver and his

auto,” they “need not be pursued to the exclusion of, or in particular sequence with, other efficient

means.” United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004). According to Rynearson,

confirmation of his military status would confirm his citizenship. Furthermore, it is the continued

questioning after the confirmation of citizenship that impermissibly lengthens a stop. See United

States v. Valadez, 267 F.3d 398-99 (5th Cir. 2001).

Although the thirty-four minute stop of Rynearson was longer than some stops that occur

at checkpoints, the length of the detention did not exceed a constitutionally permissible time.

Rynearson’s own behavior caused the delays. Agent Lands, as a result of Rynearson’s abnormal

behavior, developed reasonable suspicion that Rynearson was involved in some criminal activity.

The agents acted as quickly as possible to dispel any notions of wrongdoing. After Agent Perez

confirmed Rynearson’s citizenship, he informed him that he could leave the checkpoint, thus ending

the seizure.

Because he cannot establish that the Defendants conducted an unreasonable search and

seizure under the Fourth Amendment, Rynearson did not satisfy his burden under a qualified

immunity analysis. The Court finds that no rational trier of fact could find for Rynearson.

Therefore, summary judgment in favor of the Defendants is appropriate.

B. Remaining Claims

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may file a motion

to dismiss a case for failure to state a claim upon which relief can be granted. “Motions to dismiss

for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to

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state a legally cognizable claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)

(citing Fed. R. Civ. P. 12(b)(6)). A claim sufficient to survive a motion to dismiss “pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 554, 570 (2007)). Two principles guide a court’s evaluation of the sufficiency

of a complaint:

First, [a court] must accept as true all well pleaded facts in the complaint, and thecomplaint is to be liberally construed in favor of the plaintiff. Second, a complaintshould not be dismissed for failure to state a claim unless it appears beyond doubtthat the plaintiff can prove no set of facts in support of his claim that would entitlehim to relief.

Kaiser Aluminum and Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.

1982) (internal citations omitted). The deference afforded to a plaintiff’s pleadings is not unfettered.

See Southland Securities Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)

(“We will not strain to find inferences favorable to the plaintiffs. Nor do we accept conclusory

allegations, unwarranted deductions, or legal conclusions.” (internal quotations and citations

omitted)). Conclusory allegations in the complaint are not accepted as true. See Iqbal, 556 U.S. at

679 (“[A] court considering a motion to dismiss can choose to begin by identifying pleadings that,

because they are no more than conclusions, are not entitled to the assumption of truth.”).

1. Count Four: Fifth, Sixth, and Fourteenth Amendment Claims for UnreasonableSearch, and Count Six: Supervisory Liability

Rynearson did not object to the recommendation of the Magistrate Judge that his Fifth, Sixth,

and Fourteenth Amendment claims, as well as the claim for supervisory liability and failure to

intervene, be dismissed for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of

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Civil Procedure. Accordingly, this Court must only review Judge White’s findings for clear error. 5

See Wilson, 864 F.2d at 1221. Upon review of the unobjected-to portions of the Report, this Court

finds that the conclusions are neither erroneous nor contrary to law.

The Magistrate Judge recommends dismissal of the remaining constitutional claims because

they are inapplicable to the Plaintiff’s unreasonable seizure claim. First, the Fifth Amendment

protects individuals from deprivation of life, liberty, or property, without due process of law. U.S.

Const. amend. V. Because the Fourth Amendment specifically protects against the action

complained of by the Plaintiff—an unreasonable seizure—the claim should be analyzed under the

Fourth Amendment, not the Fifth. See Albright v. Oliver, 510 U.S. 266, 273 (1994) (providing that

the amendment encompassing the “explicit textual source of constitutional protection” should apply,

not “the more generalized notion of substantive due process”) (internal quotations omitted). The

Sixth Amendment is also inapplicable to the Plaintiff’s civil cause of action because it affords

protection for a criminal defendant during criminal prosecutions. See United States v. Balsys, 524

U.S. 666, 672 (1998). Finally, any claim of a Fourteenth Amendment violation is misplaced because

it applies only to state action, whereas only federal action is alleged in the complaint. See McGuire

v. Turnbo, 137 F.3d 321, 323 (5th Cir. 1998) (“The Fourteenth Amendment, by definition, requires

state action.”).

In reviewing the supervisory liability claim, the Magistrate Judge concludes that the

Rynearson does not specifically object to the Magistrate Judge’s recommendation that Count Five (A Bivens5

action for false imprisonment and unreasonable search and seizure) be dismissed as duplicative of the allegations inCount Two (false arrest and imprisonment) and Count Four (violation of Fourth Amendment right for wrongfuldetention). Instead, he seeks leave of the Court to state a singular Bivens claim for unreasonable detention under theFourth Amendment. This Court will not permit Rynearson to amend the complaint, but instead will consider theunreasonable detention claim in conjunction with Count Four. The Court will not reconsider the false imprisonmentclaim of Count Five. Count Two alleged an identical false imprisonment claim, and has already been dismissed due tolack of subject matter jurisdiction.

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Plaintiff’s cause of action cannot survive a Rule 12(b)(6) analysis. To recover under a theory of

supervisory liability, a plaintiff must show that the supervisor overtly participated in the wrongful

conduct or that (1) there is a causal link between failure to train and the violation of the plaintiff’s

constitutional rights, and (2) the failure to train or supervise rises to the level of deliberate

indifference. See Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008) (quoting Estate of Davis v.

City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005)). Here, Rynearson only alleges that

Agent Perez failed to supervise Agent Lands. He does not allege that Agent Perez participated in

any acts with Agent Lands or that Agent Perez acted deliberately or with reckless indifference.

To recover under a theory of failure to intervene, the plaintiff must establish that an officer

present at the scene and fails to protect an individual from an officer’s use of excessive force.” Hale

v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). The Plaintiff does not allege that any excessive force

was used. Therefore, dismissal under Rule 12(b)(6) is appropriate.

Accordingly, the Magistrate Judge’s recommendations are ADOPTED. The motion to

dismiss Rynearson’s causes of action based on violations of the Fifth, Sixth, and Fourteenth

Amendments, as well as his allegation for supervisory liability is GRANTED. Therefore, the claim

for violations of Rynearson’s Fifth, Sixth, and Fourteenth Amendments in Court Four are

DISMISSED. Count Six of the complaint is also DISMISSED for failure to state a claim under

Rule 12(b)(6).

2. Count Seven: Conspiracy Claim

To sufficiently state a cause of action for a Bivens conspiracy, the plaintiff must “establish

the existence of a conspiracy” as well as the violation of a constitutional right in furtherance of the

conspiracy. Thompson v. Johnson, 348 F. App’x 914, 920 (5th Cir. 2009) (citing Hale v. Townley,

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45 F.3d 914, 920 (5th Cir. 1995)). Because a conspiracy claim is not actionable under Bivens alone,

there must be an underlying constitutional violation. See Andrafe v. Chojnacki, 65 F.Supp.2d 431,

462 (W.D. Tex. 1999) (citing Pfannstiel v. City of Marion, 918 F.2d 1178 (5th Cir. 1998)).

This Court has determined that Defendants are entitled to qualified immunity for

Rynearson’s claim that they violated his Fourth Amendment right to be free from an unreasonable

seizure. Accordingly, there are no other constitutional violations that have survived either a 12b(6)

or summary judgment analysis. Therefore, there is no underlying constitutional violation to

accompany the conspiracy claim. See id. Summary judgment is thus appropriate for the Bivens

conspiracy claim.

A plaintiff must support his claim with operative facts. See Lynch v. Cannatella, 810 F.2d

1363, 1370 (5th Cir. 1987). “Bald allegations that a conspiracy existed are insufficient.” Id. “A

claim for relief is implausible on its face when ‘the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634

F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 662 (2009)). “Where the well-pleaded facts

do not permit the court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not ‘shown[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679

(quoting Fed. R. Civ. P. 8(a)).

Rynearson has not adequately pleaded facts to state a claim that Agent Land and Agent Perez

conspired to violate his Fourth Amendment rights. Under the “conspiracy” heading in the complaint,

Rynearson states that “at all times defendants were acting in concert and in conspiracy and as agents

of the United States.” (ECF No. 23 at 13, para. 50). To survive a motion to dismiss, the plaintiff

must “allege specific facts to show an agreement.” Priester v. Lowndes County, 354 F.3d 414, 421

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(5th Cir. 2004). Rynearson does not allege that Agent Perez and Agent Lands formed an agreement

and does not plead facts that would show the formation of an agreement. Rynearson describes three

prior incidents where he believes he was subjected to unconstitutional seizures at the Uvalde

checkpoint, but does not factually connect either Defendant to the previous stops at the checkpoint.

Blanket allegation, such as stating that Agent Perez knew that Agent Lands had not asked Rynearson

about his citizenship and that he knew that Agent Lands was trying to illegally detain Rynearson

because he illegally seizes individuals at the checkpoint will not satisfy Rule 12(b)(6). See Jefferson

v. Lead Industries Ass’n, Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) (“[C]onclusory allegations or

legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to

dismiss.”) Because Rynearson fails to adequately state a claim for conspiracy, the recommendation

of the Magistrate Judge is ADOPTED. The motion to dismiss as to Count Seven is GRANTED.

C. Request for Stay for Purposes of Limited Discovery

Limited discovery is proper only if the plaintiff has raised a genuine issue as to the illegality

of the defendant’s conduct. See Schultea v. Wood, 47 F.3d at 1434. A court may also permit limited

discovery and delay a ruling on qualified immunity “if further factual development is necessary to

ascertain the availability of that defense.” Backe v. Le Blanc, 691 F.3d 645, 648 (5th Cir. 2012).

The Court finds that limited discovery is not appropriate in this case. Rynearson failed to show that

the Defendants violated any of his constitutional rights. Therefore, this Court ADOPTS the

conclusion of the Magistrate Judge that the motion should be denied.

IV. Conclusion

After a de novo review of the record, the Court ADOPTS the Report’s conclusion that the

motion to dismiss and motion for summary judgment should be granted. Dismissal pursuant to Rule

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12(b)(6) is appropriate for the Fifth, Sixth, and Fourteenth Amendment claims under Count Four,

as well as for Count Five (false imprisonment), Count Six (failure to intervene/supervisory liability),

and Count Seven (conspiracy). The Defendants are entitled to qualified immunity for any Fourth

Amendment claims. The Plaintiff is has not established a need for discovery. It is ordered that:

The Plaintiff’s motion to continue summary judgment (ECF No. 34) is DENIED. The

Defendants’ motion for summary judgment (ECF No. 29) is GRANTED. Therefore, the Fourth

Amendment claims under Count Four are DISMISSED. The Defendants’ motion to dismiss (ECF

No. 29) is GRANTED. Therefore, Fifth, Sixth, and Fourteenth Amendment claims under Count

Four are DISMISSED. Counts Six and Seven are also DISMISSED.

SIGNED this 30th day of September, 2013.

______________________________________

ALIA MOSES UNITED STATES DISTRICT JUDGE

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