Moreno v. United States Customs and Border Protection Officer Mario Unate and the United States of America., No. 3:14-CV-04266-B (N.D. Tex., filed Dec. 3, 2014)

On December 2, 2012 around 5pm, Jorge Moreno Villegas, who is Hispanic, was driving a pick-up truck on a highway outside of Ozona, Texas with a Hispanic colleague as a passenger.  The men were on their way home from work.  Passing in the opposite direction, a Border Patrol agent saw the two men and, turning his vehicle around, squeezed it in between Mr. Moreno’s truck and the vehicle behind it. It is undisputed that Mr. Moreno had not committed any driving violations.  The agent stopped Mr. Moreno and began questioning him and his passenger about their immigration status and citizenship.  The men declined to respond.  The agent then began questioning them in Spanish and ordered Mr. Moreno to exit the truck.  The agent proceeded to handcuff Mr. Moreno and place him in the back of his vehicle.  He did the same for the passenger.

On December 3, 2014, Mr. Moreno filed a complaint against the agent.  He alleges that the agent stopped him without consent or legal authority and was motivated solely by his Hispanic appearance and that of his passenger.  Mr. Moreno brings a claim against the agent for violating the Fourth Amendment to the United States Constitution and an FTCA claim against the United States for false imprisonment and assault.

On February 12, 2015, Defendants moved to dismiss Mr. Moreno’s FTCA claim for false imprisonment on the basis that he had failed to plead facts regarding his immigration status, and that the arrest would have been lawful if he had told the agent that he was not legally present in the United States. Finding that the Border Patrol agent had pulled Mr. Moreno over solely based on his Hispanic appearance, the Court concluded that he lacked reasonable suspicion or probable cause for the stop and thus denied Defendants’ motion.

In late November 2015, the parties filed a joint motion for a stay pending decision on a forthcoming petition for certiorari to the U.S. Supreme Court in De la Paz v. Coy et al., which was filed in January 2016 (No. 15-888). On June 26, 2017, the Supreme Court denied the petition for writ of certiorari in De la Paz. Following the parties’ subsequent stipulation of dismissal, the district court dismissed the case on January 4, 2018.

• Complaint
• Memorandum Opinion and Order

Counsel: De Mott, McChesney, Curtright & Armendáriz, LLP

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

Doe v. El Paso County Hospital District, et al., No. 3:13-cv-00406  (W.D. Tex., filed Dec. 18, 2013)

Jane Doe sued several CBP officers in their individual capacity (as well as medical personnel and a hospital) after being subjected to six hours of increasingly invasive searches of her body in violation of the United States Constitution.  She seeks both compensatory and punitive damages.

Jane Doe is a 54-year-old United States citizen who, when returning from a visit to Mexico and after having her valid passport swiped, was randomly picked by CBP officers for additional screening.  She was sent to secondary inspection and frisked by two female officers, one of whom put her finger in the crevice of Ms. Doe’s buttocks.  Although no contraband was found, she was placed in a line with others, where a dog allegedly alerted CBP officers that she possessed contraband.  She was not carrying any contraband, however, and thus the alert was either a false one or did not occur.  Thereafter, she was strip-searched by CBP officers and examined with a flashlight.  When this revealed no contraband, the defendant CBP officers transported her in handcuffs to the hospital, where she was forced to take a laxative and monitored while having a bowel movement.  Despite no evidence of contraband, she was then subjected to an x-ray, a physical examination of her vagina and rectum, and a C-T scan.  After each of these exams, defendants insisted on proceeding to the next, more invasive exam despite the fact that none of them produced any evidence.  After the C-T scan, Ms. Doe was informed that she could sign a statement indicating voluntary consent to the searches, in which case CBP would pay the hospital bill; if she refused to sign the consent form, she was told she would be billed for the hospital’s expenses.  She refused to sign and subsequently was billed $5,000.

On December 18, 2013, Ms. Doe filed a complaint against various CBP officers alleging constitutional violations for unreasonable seizure, false arrest, false imprisonment, unreasonable search, and deprivation of due process under Bivens. Her complaint also asserted multiple §1983 claims against the medical facilities and staff involved. The claims against the medical staff and facilities were subsequently settled for $1.1 million. The case against CBP continues.

In July 2015, Plaintiff filed an amended complaint, which the CBP Defendants answered in November 2015.  On June 14, 2016, the District Court accepted the parties’ stipulation of dismissal.  On July 21, 2016, the ACLU announced that CBP had agreed to pay Plaintiff $475,000.

• Complaint
• Texas Hospital Reaches $1.1 Million Settlement
• Amended Complaint
• Settlement Announcement

Counsel: Edgar Saldivar, Rebecca Robertson | ACLU of Texas

Laura Schauer Ives, Kristen Love, Jesse Hale | ACLU of New Mexico

Contact: Edgar Saldivar | ACLU of Texas | esaldivar@aclutx.org

Laura Schauer Ives | Kennedy Kennedy & Ives, LLC | LSI@civilrightslawnewmexico.com

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. On June 26, 2017, the Supreme Court denied the petition for writ of certiorari in De la Paz. Following the parties’ subsequent stipulation of dismissal, the district court dismissed the case on February 15, 2018.

• Second Amended Complaint
• Memorandum Opinion and Order – District Court
• Border Patrol Agent’s Brief – Fifth Circuit
• Plaintiff’s Brief – Fifth Circuit
• Border Patrol Agent’s Reply Brief – Fifth Circuit
• Amicus Curiae Brief – Fifth Circuit
• Fifth Circuit Decision – May 14, 2015
• Decision Denying Rehearing En Banc – Fifth Circuit
• Petition for Writ of Certiorari – Supreme Court
• Opposition to Petition – Supreme Court
• Reply to Opposition to Petition – Supreme Court

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

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

Hernandez-Carranco v. U.S.A., et al., No. 3:12-CV-05186 (N.D. Tex., filed Dec. 19, 2012)

Josue Hernandez-Carranco, traveling with his father and a friend, stopped in the parking lot of a gas station to use the restroom when two Border Patrol (BP) agents approached and stood in front of the doors of his truck. The agent on Mr. Hernandez-Carranco’s side opened his door, grabbed him by his arm, and, in Spanish, demanded his papers. Mr. Hernandez-Carranco replied in English that he had papers, and showed the agent his valid Texas driver’s license. In Spanish, the agent told him that this was insufficient. He then handcuffed Mr. Hernandez-Carranco, pulled him out of the truck, and placed him in a BP van with several other men. Mr. Hernandez-Carranco was cold, but the agent refused his request to grab his jacket before he was put in the van.

Once on the road, an agent drove the van so recklessly that the men feared for their safety. When the agents finally agreed to a rest stop, they handcuffed the men in pairs and took them out of the van on the side of the road. The BP agents taunted and humiliated one man for his discomfort at having to relieve himself in this situation.

Mr. Hernandez-Carranco seeks damages for his unlawful seizure. At the time of arrest, the agents lacked any reasonable suspicion that Mr. Hernandez-Carranco, his father, or his friend had committed an unlawful act or were in the country illegally. They were over 200 miles from the border, had broken no traffic laws, and had taken no evasive or otherwise unusual action. The BP agents interrogated and arrested Mr. Hernandez-Carranco based solely on his Hispanic appearance.

On January 28, 2014, the parties met for a settlement conference, where they expressed interest in engaging in non-binding mediation with a private mediator or a settlement conference to be conducted by the Magistrate Judge. On April 1, 2014, both parties filed a stipulation of dismissal of all claims.

• Complaint
• Joint Settlement Conference Report
• Stipulation of Dismissal

Counsel: De Mott, McChesney, Curtright & Armendáriz, LLP

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

Garcia De La Paz v. Coy et al., No. cv-00957 (W.D. Tex., filed Oct. 9, 2012) sub nom. Garcia de la Paz et al. v. Coy et al.  No. 15-888 (U.S.)

Alejandro Garcia De La Paz was riding home from work in Texas in the passenger seat of his co-worker’s truck, with two other coworkers riding in the backseat, when they were pulled over by two Border Patrol vehicles using their emergency flashers. The two agents approached the truck on both sides of the car and, without explaining the reason for the stop, asked whether the passengers were U.S. citizens. Upon hearing Mr. Garcia’s answer, the agent opened Mr. Garcia’s door, grabbed him by the arm, pulled him out of the truck, and brought him to his patrol car.

At the time of the stop, the agents were not patrolling the U.S. border and had no reasonable suspicion that the driver of the car, Mr. Garcia, or the other two passengers had violated or were violating any law. The agents also had no reason to believe that Mr. Garcia and his co-workers were noncitizens, had recently come from a border area, or were in violation of any immigration law. Instead, the agents stopped Mr. Garcia and his co-workers solely because of their Hispanic appearance.

Mr. Garcia seeks damages from the individual agents for the violation of his constitutional right to be free from unlawful searches and seizures, and from the United States for his unlawful arrest by the agents.

The district court denied the individual agents’ request for qualified immunity. The agents appealed this denial of qualified immunity to the Fifth Circuit, raising two issues:

1. Whether the district court improperly extended to a “new context” the remedy for unconstitutional conduct by a federal agent first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and
2. Whether the agents were 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 plaintiff’s claims fell within Bivens’ core holding and purpose; the Immigration and Nationality Act did not serve as an alternate remedial scheme that would compensate him for his injuries; there were no special factors counseling against a Bivens remedy in a case such as this; and the defendants’ position would create virtual immunity for unconstitutional conduct by immigration agents.

The Fifth Circuit heard oral argument on September 3, 2014. On May 15, 2015, it reversed the district court, holding instead that a Bivens action was not available to redress the Border Patrol agents’ 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. It refused to extend Bivens to this new context, finding 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 January 2016, de la Paz filed a petition for writ of certiorari with the U.S. Supreme Court (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 June 26, 2017, the Supreme Court denied the petition.

• Complaint
• Order
• Border Patrol Agent’s Brief – Fifth Circuit
• Plaintiff’s Brief – Fifth Circuit
• Border Patrol Agent’s Reply Brief – Fifth Circuit
• Amicus Curiae Brief – Fifth Circuit
• Decision Denying Rehearing En Banc – Fifth Circuit
• Petition for Writ of Certiorari – Supreme Court
• Opposition to Petition – Supreme Court
• Reply to Opposition to Petition – Supreme Court

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

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