Frias v. Torrez, et al.

Daniel Frias v. Torrez, et al., No. 3:12-CV-1296-B (N.D. Tex., filed Apr. 26, 2012) sub nom. de la Paz et al. v. Coy et al., No. 15-888 (U.S.)

Daniel Frias was driving a four-door pick-up truck on a highway outside of Abilene, Texas with a white colleague as a passenger when a Border Patrol agent stopped his vehicle.  It is undisputed that he had not committed any driving violations.  The Border Patrol agent justified the stop solely on the basis that he allegedly saw shapes in the back seat that appeared to be bodies, and that the route was a known one for smuggling.  Frias disputed that there was anything in the back seat at all.  Upon being stopped, Frias stated that the agent asked him for identification, that he produced his valid New Mexico driver’s license and that he was handcuffed almost immediately after this.  His white colleague was asked for his driver’s license and then not asked any additional questions.  Frias claims that the stop violated the Fourth Amendment to the United States Constitution and was motivated solely by his Hispanic appearance, and also that the agent committed the torts of false arrest and assault.

On October 31, 2013, the district court denied the government’s motion for summary judgment with respect to the constitutional claims against the individual Border Patrol agent and the tort claims against the United States.  The court found that the dispute as to the facts prevented it from granting the government’s motion.  Specifically, if there was nothing in the back seat of the truck, as Frias maintained, then the stop – which took place hundreds of miles from the border and involved no other suspicion of wrongdoing – would not have been justified under the Fourth Amendment.  For similar reasons, the court could not grant the United States’ motion for summary judgment on the false imprisonment and assault tort claims.

On December 30, 2013, the defendant Border Patrol agent filed an interlocutory appeal to the Fifth Circuit. The appeal raised two issues:

  1. Whether the district court improperly extended to a “new context” the remedy for unconstitutional law enforcement conduct first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and
  2. Whether the agent was entitled to qualified immunity from suit.

The parties fully briefed these issues. The National Immigration Project of the National Lawyers’ Guild and the American Immigration Council submitted an amicus brief addressing the Bivens issue. Amici argued that the claims fell within Bivens’ core holding and purpose; the Immigration and Nationality Act was not a remedial or compensatory statute; there were no special factors counseling against a Bivens remedy in a case such as this; and the defendant’s position would create virtual immunity for unconstitutional conduct by immigration agents.

After hearing oral argument on September 3, 2014, the Fifth Circuit – in a consolidated opinion with De La Paz v. Coy – reversed the District Court on May 15, 2015.  The court held that a Bivens action was not available to redress the Border Patrol’s violation of the Fourth Amendment rights of an undocumented noncitizen. Notwithstanding the traditional Fourth Amendment claim presented, the court found that it presented a new “context” for a Bivens claim and refused to extend Bivens to this new context.  The court found that removal proceedings provided an alternative remedial scheme for the plaintiff. It also found that special factors cautioned against such an extension.

The Fifth Circuit, sua sponte, took a vote as to whether to rehear the case en banc. Only four judges voted in favor and on October 14, 2015, the court denied rehearing en banc. Three judges dissented from this denial in a strongly worded opinion which emphasized that this case fell squarely within the holding of Bivens.

In December 2015, the parties filed a joint motion for a stay pending decision on the then forthcoming petition for certiorari to the U.S. Supreme Court in both the instant case and De la Paz v. Coy et al.  The petition was filed in January 2016 (No. 15-888).

Briefing on the petition for writ of certiorari ended on June 1, 2016.  The petition was initially distributed to the Court for its June 16, 2016 conference, but was rescheduled on June 6, 2016. On September 21, 2016, the petition was distributed for the October 7, 2016 conference.

As of August 2017, the matter remains stayed.

Counsel: Mayer Brown LLP and De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com

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