rynearson appeal to fifth circuit
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No. 13-51114
________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________
RICHARD RYNEARSON,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; AGENT LANDS, Border Patrol Agent,
Individually; RAUL PEREZ, Border Patrol Agent, Individually
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS, DISTRICT COURT NO. 2:12-CV-24
________________________________
BRIEF FOR APPELLANT RICHARD RYNEARSON
_________________________________
JAVIER N. MALDONADO
(attorney-in-charge)
Texas Bar No. 00794216
Law Office of Javier N. Maldonado, P.C.
8918 Tesoro Dr., Ste. 575
San Antonio, TX 78217
Phone: (210) 277-1603
Fax: (210) 587-4001
Attorney for Appellant
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i
CERTIFICATE OF INTERESTED PARTIES
No. 13-51114,Rynearson v. United States of America.
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this Court may evaluate possible disqualification or recusal.
Richard Rynearson, Plaintiff-Appellant
Javier N. Maldonado, Counsel to Plaintiff-Appellant
Justin K. Lands, Defendant-Appellee
Raul Perez, Defendant-Appellee
Harold E. Brown, Counsel to Defendants-Appellees
/s/Javier N. Maldonado
Attorney of Record for Richard Rynearson
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ii
STATEMENT REGARDING ORAL ARGUMENT
This case involves legal questions of great importance within this judicial
circuit, given that the Border Patrol operates approximately eighteen permanent
suspicionless checkpoints in Texas alone, stopping thousands if not hundreds of
thousands of motorists per year. It is likely that the issue presented will arise in
other cases, both criminal and civil, and in Appellants view the decisional process
would be aided by oral argument. Accordingly, pursuant to Fifth Circuit Rule
28.2.3, Appellant respectfully requests that this Court hear oral argument in this
matter.
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES ......................................................... i
STATEMENT REGARDING ORAL ARGUMENT .............................................. ii
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF ISSUES ....................................................................................... 2
STATEMENT OF THE CASE .................................................................................. 3
A.
Constitutional Framework ............................................................................... 3
B. Factual Background ......................................................................................... 4
1. Rynearsons Experience with the Uvalde Checkpoint ................................. 4
2.
The March 18, 2010 Detention .................................................................... 5
3. Letter to Rynearsons Commander............................................................15
C.
Procedural History .........................................................................................15SUMMARY OF ARGUMENT ...............................................................................18
ARGUMENT ...........................................................................................................20
I.
STANDARD OF REVIEW ..............................................................................20
II. THE DETENTION OF RYNEARSON FOR THIRTY-FOUR MINUTESEXCEEDED THE MINIMAL INTRUSION ALLOWED FOR A
SUSPICIONLESS IMMIGRATION CHECKPOINT STOP ...........................22
A.
The Overall Detention Extended Far Beyond The Time Reasonably
Necessary To Inquire Into Immigration Status .............................................23
1.
The Agents Failed to Exercise Diligence and Extended the Detention
Beyond a Reasonable Time with Dilatory Tactics and IrrelevantQuestioning ................................................................................................24
2.
The Agents Are Responsible for the Dilatory Tactics that Extended the
Detention ....................................................................................................29
B.
Perezs Investigation Of Military Status For Ten To Fifteen Minutes
Unlawfully Extended The Detention ............................................................42
1.
The Immigration Purpose of the Stop Was Completed Prior to the
Extended Investigation into Military Status ..............................................43
2. Detention for Ten to Fifteen Minutes in Order to Contact the Military
Violated the Fourth Amendment Regardless of Sequence ........................45
III.
THE EXTENDED DETENTION CANNOT BE JUSTIFIED ON THE BASIS
OF REASONABLE SUSPICION ....................................................................48
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A.
The Detention Cannot Be Upheld On The Basis Of Post Hoc Reasonable
Suspicion Never Articulated By Any Of The Law Enforcement OfficersInvolved .........................................................................................................49
B. The Totality Of Circumstances Does Not Establish Reasonable Suspicion Of
Drug Trafficking ...........................................................................................52
C. The Thirty-Four Minute Detention Was Unreasonable Because The AgentsMade No Efforts To Confirm Or Dispel Any Suspicion, Much Less Diligent
Efforts ............................................................................................................59
IV.
THE DISTRICT COURT ABUSED ITS DISCRETION BY REFUSING TO
GRANT A CONTINUANCE FOR LIMITED DISCOVERY .........................61
CONCLUSION ........................................................................................................64
CERTIFICATE OF SERVICE .................................................................................65
CERTIFICATE OF COMPLIANCE .......................................................................66
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TABLE OF AUTHORITIES
Page(s)
CASES
Access Telecom, Inc. v. MCI Telecomms. Corp.,197 F.3d 694(5th Cir. 1999) .............................................................................. 61
Berkemer v. McCarty,468 U.S. 420(1984) ...................................................................................... 34, 57
Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971) ............................................................................................ 15
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) ................................................................................................ 3
Club Retro, LLC v. Hilton,
568 F.3d 181(5th Cir. 2009) .............................................................................. 21
Curtis v. Anthony,710 F.3d 587(5th Cir. 2013) .................................................................. 21, 61, 64
Florida v. Bostick,
501 U.S. 429(1991) ...................................................................................... 35, 57
Goodson v. City of Corpus Christi,
202 F.3d 730(5th Cir. 2000) .................................................................. 21, 43, 45
Hiibel v. Sixth Judicial Dist. Ct. of Nev.,542 U.S. 177(2004) ................................................................................ 34, 35, 36
Intl Shortstop v. Rallys Inc.,939 F.2d 1257(5th Cir. 1991) ............................................................................ 61
Johnson v. Campbell,
332 F.3d 199(3d Cir. 2003) ............................................................................... 57
Karnes v. Skrutski,
62 F.3d 485(3d Cir. 1995) ................................................................................. 57
Keelan v. Majesco Software, Inc.,407 F.3d 332(5th Cir. 2005) .............................................................................. 50
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Pennsylvania v. Mimms,
434 U.S. 106(1977) ...................................................................................... 38, 39
Raby v. Livingston,600 F.3d 552(5th Cir. 2010) .............................................................................. 61
Saucier v. Katz,533 U.S. 194 (2001) ............................................................................................ 21
Schultea v. Wood,
47 F.3d 1427(5th Cir. 1995) .............................................................................. 62
Scott v. Harris,550 U.S. 372 (2007) ............................................................................................ 30
Terry v. Ohio,392 U.S. 1 (1968) ................................................................................................ 50
Texas v. Brown,460 U.S. 730 (1983) ............................................................................................ 39
United States v. Arredondo-Hernandez,
574 F.2d 1312(5th Cir. 1978) ............................................................................ 39
United States v. Arvizu,
534 U.S. 266 (2002) ............................................................................................ 51
United States v. Brigham,382 F.3d 500(5th Cir. 2004) ........................................................................ 29, 47
United States v. Brignoni-Ponce,
422 U.S. 873(1975) ...................................................................................... 35, 50
United States v. Chacon,
330 F.3d 323(5th Cir. 2003) .............................................................................. 63
United States v. Dortch,199 F.3d 193(5th Cir. 1999) .................................................................. 24, 28, 55
United States v. Inocencio,40 F.3d 716(5th Cir. 1994) ................................................................................ 54
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United States v. Johnson,
620 F.3d 685(6th Cir. 2010) .............................................................................. 57
United States v. Jones,234 F.3d 234(5th Cir. 2000) .................................................................. 24, 46, 58
United States v. Machuca-Barrera,261 F.3d 425(5th Cir. 2001) .......................................................................passim
United States v. Macias,
658 F.3d 509(5th Cir. 2011) .......................................................................passim
United States v. Martinez-Fuerte,428 U.S. 543 (1976) .....................................................................................passim
United States v. Massenburg,654 F.3d 480(4th Cir. 2011) .............................................................................. 56
United States v. Olivares-Pacheco,633 F.3d 399(5th Cir. 2011) ........................................................................ 50, 57
United States v. Pack,
612 F.3d 341(5th Cir. 2010) .............................................................................. 59
United States v. Portillo-Aguirre,
311 F.3d 647(5th Cir. 2002) .................................................................. 24, 43, 45
United States v. Rangel-Portillo,586 F.3d 376(5th Cir. 2009) .............................................................................. 53
United States v. Reyes,
227 F.3d 263(5th Cir. 2000) ........................................................................ 53, 54
United States v. Santos,
403 F.3d 1120(10th Cir. 2005) .......................................................................... 56
United States v. Shabazz,993 F.2d 431(5th Cir. 1993) .............................................................................. 34
United States v. Sharpe,470 U.S. 675(1985) ...................................................................................... 40, 47
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United States v. Villalobos,
161 F.3d 285(5th Cir. 1998) .............................................................................. 54
Vander Zee v. Reno,73 F.3d 1365(5th Cir. 1996) .............................................................................. 62
Xerox Corp. v. Genmoora Corp.,888 F.2d 345(5th Cir. 1989) .............................................................................. 61
CONSTITUTION AND STATUTES
U.S. Const., Amendment 4 ...............................................................................passim
8 U.S.C.
1304(e) ............................................................................................................. 36
1357(a) ............................................................................................................. 36
28 U.S.C.
1291 .................................................................................................................... 1 1331 .................................................................................................................... 1
RULES
Fed. R. App. P. 4(a)(1)(B) ......................................................................................... 1
Fed. R. Civ. P. 54(d) .........................................................................................passim
Fifth Circuit Rule 28.2.2 ............................................................................................ 6
OTHER AUTHORITIES
Border Patrol Checkpoints Foiled by Drivers Asserting Their Rights,HUFFINGTON POST,March 1, 2013,
http://www.huffingtonpost.com/2013/03/01/border-patrol-checkpoints_n_2789592.html ............................................................................. 56
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1
JURISDICTIONAL STATEMENT
The district court exercised jurisdiction under 28 U.S.C. 1331and entered
final judgment on September 30, 2013. Appellant Richard Rynearson filed a
timely notice of appeal on November 26, 2013. ROA.495; see Fed. R. App. P.
4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. 1291.
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STATEMENT OF ISSUES
1. Whether a thirty-four minute detention extended beyond the constitutional
scope of a suspicionless immigration checkpoint stop, when Border Patrol
agents asked the first question regarding immigration status eleven minutes
into the stop, had physical possession of two passports seventeen minutes
into the stop, and extended the stop by fifteen minutes to contact the U.S.
citizens military base to verify his military identity and to discuss the
checkpoint encounter.
2. Whether a stop may be upheld on the basis of reasonable suspicion of drug
trafficking when one of the agents involved expressly disclaimed having
reasonable suspicion and the other agent articulated no suspicion
whatsoever, the agents conducted no investigation into drug smuggling
except for a canine sniff causing no alert, the district court based its
reasonable suspicion finding on factors not articulated by the agents, and the
totality of the circumstances is not consistent with drug smuggling.
3. Whether a pre-answer, pre-discovery motion for summary judgment should
have been continued for limited discovery regarding, inter alia, whether a
Border Patrol agent had determined immigration status prior to extending
the detention by fifteen minutes to call a U.S. citizensemployer to verify
military status and to speak directly with his commander.
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STATEMENT OF THE CASE
In March 2010, the Border Patrol detained Rynearson for thirty-four minutes
at an interior immigration checkpoint on Highway 90, sixty-seven miles from the
border. The Defendant Border Patrol agents did not ask about immigration status
until eleven minutes into the seizure. Instead, the agents pursued irrelevant
questioning, engaged in other dilatory tactics, and spent ten to fifteen minutes
calling Rynearsons employer. Rynearson sued, claiming this extended detention
violated the Fourth Amendment under clearly established law. The district court
granted the Defendants pre-answer, pre-discovery motion for summary judgment
and this appeal followed.
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. City of 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). [A]ny further
detention . . . must be based on consent or probable cause. Id.(internal quotation
marks omitted; alteration in original).
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A suspicionless checkpoint detention is unlawful if the seizure exceed[s] its
permissible duration. United States v. Machuca-Barrera, 261 F.3d 425, 432(5th
Cir. 2001). The scope of the detention is limited to inquiring into the citizenship
status of persons passing through the checkpoint, and the permissible duration
thus 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.at 433.
The seizure exceeds its permissible duration when agents ask questions outside
the scope of the stop that extend the duration of the stop beyond what is
reasonably necessary to inquire into immigration status. Id.at 432. A stop of a
couple of minutes is within the permissible duration of an immigration
checkpoint stop. Id.at 435.
B. Factual Background
1. Rynearsons Experience with the Uvalde Checkpoint
Plaintiff Richard Rynearson is an officer in the United States Air Force who
was formerly stationed at Laughlin Air Force Base, near Del Rio, Texas.
ROA.352. During his time at Laughlin, Rynearson traveled frequently to San
Antonio and was therefore frequently compelled to stop at the Border Patrols
interior checkpoint near Uvalde, Texas. ROA.352. The overwhelming majority
of traffic through this checkpoint is legitimate; in all of 2012, the Border Patrol
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apprehended a total of thirty-eight individuals at this checkpoint for illegally
entering the United States. ROA.257.
On at least three occasions before the incident that forms the basis of this
suit, Rynearson was detained for an extended period at the Uvalde checkpoint, and
in one case his vehicle was unlawfully searched, when he declined to tell the
agents his intended destination. ROA.353-ROA.354. After the first incident, in
which an agent searched the interior of his vehicle with a drug dog and threw his
property on the pavement, Rynearson filed a written complaint. ROA.353. In
another incident, an agent informed Rynearson that he was the only pilot from the
base who refused to answer where he was going. ROA.353. Following these
incidents, as well as one other encounter with unconstitutional law enforcement,
Rynearson decided to install cameras in his vehicle. ROA.354.
2. The March 18, 2010 Detention
(i) Inspection at Primary (Approximately 35 Seconds)
On March 18, 2010, Rynearson traveled alone from Del Rio to San Antonio
in a two-door car with untinted windows. ROA.354. Rynearson approached the
checkpoint with his window partially rolled down. ROA.354.
When Rynearson stopped, Agent Justin Lands asked if the car Rynearson
was driving was his vehicle. ROA.335; Def. Mot. for Summ. J., Exhibit D,
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1/00:26 (hereinafter Video).1 Rynearson responded in the affirmative and Lands
asked, Can you roll down your window? Is that as far as itll go? ROA.335-
ROA.336; Video, 1/0:27. Rynearson answered, No, it cango down more and
rolled his window down further to demonstrate. ROA.336; Video, 1/0:30. Lands
asked, You said this is your vehicle? and Rynearson confirmed it was.
ROA.336; Video, 1/0:34. Lands asked no questions related to immigration status
and referred Rynearson to secondary. ROA.335-ROA.336; Video, 1/0:00-0:35.
(ii)
Initial Inspection at Secondary (Approximately 00:35 to 5:05)
Rynearson parked in secondary and rolled up his window. ROA.336;
Video, 1/0:58. Lands walked over and request[ed] but did not direct that
Rynearson exit the vehicle. ROA.274(Lands Declaration); see also ROA.336;
Video, 1/1:34. Lands also requested that Rynearson roll down his window;
Rynearson declined both requests. ROA.336; Video, 1/1:39. Rynearson was
concerned that the agents were attempting to remove him from his vehicle so that
they could search his car, as had happened to him in the past. ROA.354.
1The video was edited only as needed to combine footage, to protect Rynearsonsidentity, and to satisfy YouTube upload requirements. ROA.355. It was filed as
Exhibit D to the Defendants summary judgment motion. ROA.271. Eventsdepicted on the video are cited in a form compliant with Fifth Circuit Rule 28.2.2
to the unofficial transcript in Plaintiffs Fact Appendix, ROA.333-ROA.346, and
also to the video by time ranges. For example, 1/0:26 refers to 26 seconds into part
1.
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Lands later declared that he had some suspicion that Rynearson declined to
roll down his window because of drugs in the door compartment. ROA.260. A
drug-sniffing dog did not alert to Rynearsons car. ROA.265. Lands decided to
complete the immigration inspection and use the results of that to determine
whether any further inquiry was necessary. ROA.260.
Over the next minute, Lands and Rynearson discussed Rynearsons
identification, Lands made further requests for Rynearson to exit the car, and
Lands questioned Rynearson regarding his military affiliation. With respect to
identification, Lands said, I need to see some identification. ROA.336; Video,
1/1:42. Rynearson responded that he could show Lands identification. ROA.336;
Video, 1/1:43. Lands also said, Well, heres what we can do. Youre gonna need
to give me your identification. ROA.337; Video, 1/2:04. Rynearson said, Ok,
and put his drivers license on the window, and said, Theres my ID. ROA.337;
Video, 1/2:07. Lands said, I need to inspect it to make sure its a valid ID.
ROA.337; Video, 1/2:10. Rynearson said, Ok and also put his military ID card
on the window. ROA.337; Video, 1/2:12-2:16. Lands began copying down
information from the identification. ROA.337; Video, 1/2:38. Lands did not
specifically ask to physically inspect the identification. ROA.337.
Around the same time, Lands asked Rynearson if he was in the military and
if he was stationed in Del Rio. ROA.337; Video, 1/2:17-2:23. Rynearson
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answered yes to both questions and Lands confirmed that he understood the
answers. ROA.337; Video, 1/2:18-2:23.
Lands made his last request that Rynearson exit the vehicle approximately
two and a half minutes into the stop, stating that if Rynearson stayed in his car
then well just do this the hard way. ROA.337; Video, 1/2:35. Lands decided to
complete the immigration inspection with Rynearson in the car. ROA.274. After
this exchange, Lands then ceased conversation. An agent behind the vehicle
pointed out the various cameras installed in Rynearsons vehicle. ROA.337;
Video, 1/2:58.
At a little after three minutes into the stop, and again just after four minutes,
Rynearson sought to re-engage Lands in conversation. ROA.337-ROA.338;
Video, 1/3:23, 1/4:07. On the second try, Lands stated that he could not hear
Rynearson, but continued with the conversation, stating that This is an
immigration checkpoint and thatRynearson had to satisfy to us that youre a
United States citizen. ROA.338; Video, 1/4:15-4:37. Although acknowledging
that Rynearson had not refused to answer any questions, Lands claimed that
Rynearson had been evasive about answering. ROA.338; Video, 1/4:52-4:55.
Lands ended this interaction by stating If youll hang tight Ill be right back with
you. ROA.338; Video, 1/5:05.
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(iii) No Interaction (Approximately 5:06 to 9:52)
For the next approximately five minutes, Rynearson had no interaction with
any agents. During that time, Rynearson made telephone calls, including a call to
an FBI office in San Antonio to discuss what was required for the Border Patrol to
search his vehicle. ROA.338-ROA.339; Video, 1/6:48-9:52.
(iv) Resumed Inspection by Lands (Approximately 9:53 to 12:52)
Following his call with the FBI, Rynearson attempted to re-start the
immigration inspection. ROA.339; Video, 1/9:53. Lands returned to the vehicle
window. When Lands stated that he could not hear Rynearson, Rynearson rolled
his window partially down, approximately ten minutes into the stop. ROA.339-
ROA.340; Video, 2/0:13-0:15. Rynearson then asked if Lands could hear him.
ROA.340; Video, 2/0:17. Lands responded Yeah, but requested that Rynearson
roll the window down further. ROA.340; Video, 2/0:18. When Rynearson began
to ask a question of Lands, Lands stated that a supervisor was coming. ROA.340;
Video, 2/0:32.
Rynearson and Lands then engaged in a discussion of when reasonable
suspicion was necessary and whether Lands had reasonable suspicion. ROA.340;
Video, 2/0:35-1:11. Rynearson then asked whether Lands thought that Rynearson
was not an American citizen. ROA.340; Video, 2/1:12. Lands responded, Well
define what that means. ROA.340; Video, 2/1:15. Rynearson responded, You
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have a military ID. ROA.340; Video, 2/1:17. Lands said, That doesnt mean
anything. ROA.340; Video, 2/1:18. Rynearsonpointed to his drivers license and
said, You have this ID. ROA.340; Video, 2/1:20. Lands said, Those arent
immigration documents. ROA.340; Video, 2/1:21.
Rynearson then asked, Do you want a passport? ROA.341; Video, 2/1:23.
Lands did not respond to the offer. ROA.341. Instead, at approximately eleven
minutes into the stop, he asked, Are you a U.S. citizen? ROA.341; Video,
2/1:24. Rynearson responded, I am a U.S. citizen. ROA.341; Video, 2/1:25.
Lands said, How come you wouldnt answer me earlier? and Rynearson
responded, You never asked me if I was a U.S. citizen! ROA.341; Video,
2/1:26.
After a discussion in which Rynearson noted that he had answered all of
Lands questions, Lands stated, Well, heres the deal, alright, like I said, I dont
need reasonable suspicion to secondary you for an immigration violation, thats
why youre being secondaried. ROA.341; Video, 2/2:07. Lands stated that he
was not accusing Rynearson of violating an immigration law. ROA.341; Video,
2/2:16. In response to Rynearsons further questions, Lands twice stated that at a
checkpoint, all he needs is mere suspicion of an immigration violation, not
reasonable suspicion. ROA.341; Video, 2/2:35. Lands declared that he had mere
suspicion but was not going to divulge it. ROA.341-ROA.342; Video, 2/2:41. In
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his declaration, Lands averred that Rynearsons detention was solely for the
purpose of conducting an immigration inspection. ROA.258.
Lands finally reiterated that a supervisor was coming, and joined other
agents at the rear of Rynearsons vehicle. ROA.342; Video, 2/2:59. Rynearson
placed two passports on the window next to the drivers license and military ID.
ROA.342; Video, 2/3:25.
(v) No Interaction (Approximately 12:53 to 17:23)
For the next four and a half minutes, Rynearson waited in the car without
interacting with any agents. ROA.342; Video, 2/3:03-7:31. At some previous
time, Lands had decided to call a supervisor to handle Rynearsons detention.
ROA.260. There was a supervisory agent already on the scene at the time, Roy
Ehresman. ROA.265. Lands, however, decided to call supervisory agent Raul
Perez, who was on patrol seven miles away at the time. ROA.260. It took Perez
approximately ten to fifteen minutes to arrive at the checkpoint. ROA.265. When
Perez arrived, he met with the on-scene supervisory agent, who briefed Perez
regarding Rynearsons detention. ROA.265. Perez was informed that there was no
canine alert on Rynearsons vehicle. ROA.265.
(vi) Inspection by Perez (Approximately 17:24 to 22:30)
Over seventeen minutes into the detention, Perez knocked on Rynearsons
window. ROA.342; Video, 2/7:31. Rynearson responded, Yes, sir?and Perez
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asked, Can you roll your window down so I can get your passport? ROA.342;
Video, 2/7:32-7:36. Rynearson responded, Sure, though the window was
already partially down, and then gave Perez two passports. ROA.342; Video,
2/7:37-7:45.
Perez asked Ok, Mr. Rynearson, was there any reason you didnt want to
tell the agent your citizenship? Thats what we do right there on primary , sir.
ROA.342-ROA.343; Video, 2/8:02. In the ensuing conversation, Rynearson
explained that he was not asked about his citizenship in primary, and that he was
not asked for a passport. ROA.343; Video, 2/8:07-8:34. Then, about one minute
after Perezs arrival and more than eighteen minutes into the stop, Perez said, Just
bear with me, let me check out your passport and well get you on your way, sir.
ROA.343; Video, 2/8:37.
Rynearson then informed 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 and that his video was sent on the internet. ROA.343;
Video, 2/8:41. Perez acknowledged Rynearsons statements about the video, and
then questioned Rynearson regarding his military status. ROA.343; Video, 2/8:43.
Specifically, Perez asked And where are you currently stationed? ROA.343;
Video, 2/8:48. Rynearson responded that he was stationed at Laughlin. ROA.343;
Video, 2/8:50. Perez then asked, And whos your CO? ROA.343; Video,
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2/8:53. Rynearson asked, My commanding officer? and Perez responded,
Yes. ROA.343; Video, 2/8:54. Perez then put Rynearsons passports in his shirt
pocket. ROA.343; Video, 2/8:55.
Rynearson responded that he prefer[red] not toprovide that information.
ROA.343; Video, 2/8:56. Perez stated, Well I can go ahead and call anyway and
talk to the OIC of the Provost Marshall. ROA.344; Video, 2/8:59. Perez
continued, So, thats why Im asking you if youre willing to provide that
information. ROA.344; Video, 2/9:04. Rynearson asked Perez why would you
need to contact the military and whether he was not convinced that Rynearson
was an American citizen. ROA.344; Video, 2/9:07. Perez responded, No, Im
asking you who your CO is, but acknowledged that Rynearson did not have to
answer. ROA.344; Video, 2/9:13-9:29. Perez declares that he asked for
Rynearsons commanding officers name so that [he] would have some facts to
confirm [Rynearsons] military identity. ROA.265.
Following Perezs questioning regarding Rynearsons commander,
Rynearson had no interaction with the agents for about three minutes.
Perez returned to Rynearsons window over twenty-two minutes into the
stop, and returned to questioning Rynearson regarding his military assignment,
asking Laughlin Air Force Base? ROA.344; Video, 3/2:35. Rynearson replied
in the affirmative for the third time to this question, and Perez informed Rynearson
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of his intent to call the Provost Marshall and CID. ROA.344; Video, 3/2:38.
Perez then left.
During one of his absences from the vehicle, either at approximately
eighteen minutes into the stop, or twenty-two minutes into the stop, Perez called
dispatch to run a records check and scrutinized Rynearsons passport. ROA.266.
According to Lands, such a records check takes a couple of minutes. ROA.259.
Based on his review of Rynearsons documents and the return from the records
check indicating that Rynearsons passports were valid, Perez determined that
Rynearson was an American citizen and therefore there was no reason to detain
him further. ROA.266.
(vii) No Interaction (Approximately 22:31 to 33:00)
Following Perezs second period of questioning regarding Rynearsons
military assignment, there was no further interaction between Rynearson and the
agents for more than ten minutes. Perez contacted Laughlin and spoke with
Captain Dinesen of Air Force Security Forces. ROA.279. After confirming that
Rynearson was stationed at Laughlin and his military identity, Perez engaged in
further conversation with Captain Dinesen to discuss the checkpoint encounter and
a previous law enforcement encounter. ROA.279. This process took ten to fifteen
minutes. ROA.279. According to a letter sent later by Chief Patrol Agent, Robert
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Harris, Perez also spoke directly with Rynearsons commander during this time.
ROA.358.
(viii) Release from Detention (Approximately 33:01 to 34:00)
At some point after Perez determined that Rynearson was an American
citizen from reviewing his passports and conducting a records check, Lands came
into the checkpoint office. ROA.266. Perez then instructed him to release
Rynearson. ROA.266.
About thirty-three minutes into the stop, Lands returned to Rynearsons
vehicle and released him. ROA.345; Video, 4/3:45-5:02.
Rynearson was detained about thirty-four minutes in total. ROA.346;
Video, parts 1-4.
3. Letter to Rynearsons Commander
After the incident, Chief Harris sent a letter to Rynearsons commander to
complain about Rynearsons conduct and to suggest grounds for disciplinary
action. ROA.357-ROA.359.
C. Procedural History
Rynearson filed suit against Lands and Perez for unlawfully detaining him in
violation of the Fourth Amendment, under Bivens v. Six Unknown Fed. Narcotics
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Agents, 403 U.S. 388(1971).2
Prior to their answer or any discovery, the Defendants moved for summary
judgment on the ground of qualified immunity and to stay all discovery.
ROA.166; ROA.474. Rynearson opposed their motion, and also moved for a
continuance from summary judgment in order to conduct discovery, see Fed. R.
Civ. P. 54(d).
The motions were referred to a magistrate judge, who stayed all discovery.
ROA.418. The magistrate judge further recommended that Rynearsons motion to
continue summary judgment for limited discovery be denied, and that the
Defendants motion for summary judgment be granted. ROA.375. Rynearson
timely filed objections. ROA.469.
The district court reached the same conclusion as the magistrate judge and
granted summary judgment to the Defendants on the ground that Rynearson had
not established a constitutional violation. ROA.482. The district court first held
that Rynearsons conduct, and not the lack of diligence on the part of Lands, was
the sole reason for any delay in determining immigration status. ROA.484. The
district court asserted that Rynearsons failure to return his window to partially
2The district court dismissed claims under the Federal Tort Claims Act for lack of
jurisdiction, ROA.465, as well as other claims against Agents Lands and Perez,ROA.488-ROA.490. Rynearson appeals only the summary judgment granted to
the two agents on the Fourth Amendment unlawful detention claim, and the
associated denial of the motion to continue summary judgment proceedings
pending limited discovery.
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rolled down for the first ten minutes of the stop, his decision not to exit the vehicle,
his challeng[es to] the agents authority, and his putting multiple forms of
identification on the window for the first half of the stop , impeded the agents
efforts to complete his investigation and prohibited [the agents] from asking
questions, therefore justifying a thirty-four minute suspicionless detention.
ROA.486. The district court concluded that it was irrelevant whether Rynearson
had the right to take any of the actions he did. ROA.485-ROA.486.
As for the ten to fifteen minute period that Perez took to call Laughlin, the
district court concluded that Perez did so in order to confirm [Rynearsons]
citizenship and that this was an efficient means to do so. ROA.486-ROA.487.
Moreover, the district court held, this could not have unlawfully extended the
detention because only continuedquestioning after the confirmation of citizenship
impermissibly lengthens a stop. ROA.487.
The district court alternatively justified the extended detention on the ground
that Lands had developed reasonable suspicion that Rynearson was trafficking
drugs, either in his door compartment or by serving as a lead vehicle for a
contraband smuggler. ROA.485. The district court based this conclusion on
Rynearson declining to roll down his window, repeatedly challeng[ing] the
agents and combative behavior, making multiple phone calls, declining to exit
the vehicle, and purportedly refus[ing] immediately to turn over his
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identification. ROA.485. The district court concluded the agents acted as
quickly as possible to dispel any notions of wrongdoing. ROA.487. Accordingly,
while finding that the thirty-four minute detention was longer than some stops
that occur at checkpoints, it did not exceed a constitutionally permissible time.
ROA.487.
The district court entered final judgment dismissing all of Rynearsons
claims, and this appeal followed. ROA.494; ROA.495.
SUMMARY OF ARGUMENT
Because the Fourth Amendment ordinarily demands that law enforcement
have some individualized suspicion before an individual is seized, it tightly
circumscribes the operation of interior checkpoints where individuals are seized
despite no suspicion of criminal activity or unlawful presence. Under the Fourth
Amendment, Border Patrol agents may detain individuals at such checkpoints only
for a few minutesthe reasonable time necessary to make a brief and diligent
inquiry into immigration status. The detention of Rynearson for thirty-four
minutes was neither brief, nor much of an inquiry into immigration status. The
Defendants did not even begin an immigration inquiry until eleven minutes into the
seizure. Rather, they spent the overwhelming majority of the detention either
pursuing no inquiry at all, delaying any inquiry by calling in an off-site supervisor
in lieu of the readily available one, or making contact with Rynearsons military
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employer. This detention falls far outside of an objectively reasonable
immigration stop under clearly established law.
The district court laid the entire delay at Rynearsons feet, insisting that his
conduct prohibited the Defendant agents from conducting a diligent immigration
inspection. But this impermissibly reads the record in the light most favorable to
the governmentthe moving party. Viewed in the light most favorable to
Rynearson, there is no question that the agents were fully able to pursue an
immigration inquiry, when they got around to it. Immediately upon asking, agents
learned Rynearsons immigration status and received passports. Indeed, none of
the conduct of which the district court evidently disapprovessuch as questioning
whether the agents are conducting a seizure in accordance with constitutional
requirementscould have any conceivable bearing on the entire second half of the
detention, when Perez either completed or abandoned the duty to investigate
immigration status and embarked instead on reporting Rynearsons conduct to his
employer. More fundamentally, the district courts reasoning turns the Fourth
Amendment on its head. The Fourth Amendment imposes the burden of
investigatory diligence on the government, not the seized citizen. Not only does
the Fourth Amendment not compel any individual to proactively further a
government investigation, but it protects an individuals right to refuse cooperation
without suffering an extended suspicionless detention in response.
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The district courts reasonable-suspicion analysis is equally crosswise to
fundamental Fourth Amendment principles. No agent claimed that he held any
reasonable suspicion that Rynearson was engaged in criminal activity, nor
articulated any facts on which such (non-existent) reasonable suspicion might be
based. The district courts post hoc invention cannot substitute for the agents
professional judgment. It fails on its own terms, regardless, because it is based on
Rynearsons exercise of his rights, disregards factors demonstrating his conduct is
more consistent with innocence than drug trafficking, and cannot escape the fact
that the agents did not pursue (diligently or otherwise) any investigation of
criminal activity.
The district court compounded its misapplication of clearly established
constitutional law by misapplying the law regarding discovery in qualified
immunity cases. The district court denied any discovery to Rynearson prior to the
ruling on summary judgment, notwithstanding Rynearsons identification of
disputed facts that were material under even the district courts narrow conception
of the Fourth Amendments protections. At the very least, Rynearson is entitled to
limited discovery before a ruling on summary judgment.
ARGUMENT
I. STANDARD OF REVIEW
This Court applies de novo review to summary judgment motions and
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evaluate[s] the case under the same standards employed by the district court.
Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000). If the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party, then summary judgment cannot be granted. Id. The evidence and all
reasonable inferences to be drawn therefrom must be reviewed in the light most
favorable to the nonmovant. Id. This Court reviews the district courts decision
to preclude further discovery prior to granting summary judgment for abuse of
discretion. Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (per curiam)
(internal quotation marks omitted).
A law enforcement officer is entitled to summary judgment on the basis of
qualified immunity only if no reasonable jury could conclude that the officers
conduct violated a constitutional right that was clearly established. Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds, Pearson v.
Callahan, 555 U.S. 223 (2009). A right is clearly established so long as an
officer has fair warning that his conduct was unconstitutional. Club Retro, LLC
v.Hilton, 568 F.3d 181, 194(5th Cir. 2009). The law can be clearly established
despite notable factual distinctions between the precedents relied on and the case
then before the Court, so long as the prior decisions gave reasonable warning that
the conduct then at issue violated constitutional rights. Id. (internal quotation
marks omitted).
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II. THE DETENTION OF RYNEARSON FOR THIRTY-FOUR
MINUTES EXCEEDED THE MINIMAL INTRUSION ALLOWED
FOR A SUSPICIONLESS IMMIGRATION CHECKPOINT STOP
A suspicionless seizure at an interior immigration checkpoint violates the
Fourth Amendment if it extends even a few minutes past the time necessary for a
brief inquiry into immigration status. Viewed in the light most favorable to
Rynearson, the duration of the detention in this case is not even close to
constitutional limits.
It is undisputed that the Defendants did not ask the first question related to
immigration status until eleven minutes into a thirty-four minute detention, that the
Defendants called an off-site supervisor who had to travel for several minutes
rather than call the on-site supervisor, that Rynearson answered every question
asked except for the name of his commanding officer, and that Rynearson
produced two identification cards and two passports during the detention. It is
further undisputed that the Defendants prolonged the detention for ten to fifteen
minutes to call Rynearsons employer. Finally, it is undisputed that a drug dog did
not alert on Rynearsons vehicle and that the Defendants initiated no other inquiry
into drug trafficking.
There are material disputes of fact, however, regarding whether there was
any reason to call an off-site supervisor, whether Perez had completed his
immigration inspection before he extended the detention to call Rynearsons
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employer, and whether Perez extended the detention even after confirming
Rynearsons military status in order to speak directly with Rynearsons
commander. Viewed in the light most favorable to Rynearson, the agents
disregard for almost every limit upon the scope and duration of a suspicionless
immigration checkpoint stop violated clearly established law.
A. The Overall Detention Extended Far Beyond The Time
Reasonably Necessary To Inquire Into Immigration Status
Because suspicionless checkpoint stops carve out a narrow exception to
the normal rule that an individual may not be seized absent individualized
suspicion,Machuca-Barrera, 261 F.3d at 431, the Fourth Amendment is satisfied
only if the appropriate limitations on the scope of the stop are followed,
Martinez-Fuerte, 428 U.S. at 567. That means the stop may last no longer than
the amount of time reasonably necessary to ask a few questions about
immigration status. Machuca-Barrera, 261 F.3d at 435. In that time, the Border
Patrol may conduct a visual inspection of the vehicle limited to what can be
seen without a search. Martinez-Fuerte, 428 U.S. at 558. Agents may also ask
questions beyond the scope of the stop, or engage in other investigations unrelated
to the scope (such as drug dog sniffs), but only as long as in sum [the questions]
generally relate to determining citizenship status and such questions do not
extend the duration of the stop. Machuca-Barrera, 261 F.3d at 432n.21, 433.
In total, the time necessary for this brief inquiry is at most a few minutes.
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Martinez-Fuerte, 428 U.S. at 547 (upholding constitutionality of suspicionless
checkpoints where detentions were three to five minutes); Machuca-Barrera, 261
F.3d at 435 ([A] couple of minutes is within the permissible duration of an
immigration checkpoint stop.). Any detention beyond that brief timeor any
detention after the immigration inquiry is concluded, United States v. Portillo-
Aguirre, 311 F.3d 647, 657 (5th Cir. 2002)must be based on consent or
probable cause, Martinez-Fuerte, 428 U.S. at 567. Or, if the initial routine
questioning generates reasonable suspicion of other criminal activity, the stop may
be lengthened to accommodate its new justification. Machuca-Barrera, 261 F.3d
at 434. Agents violate clearly established law if they detain someone even a few
minutes beyond the permissible length of detention. United States v. Jones, 234
F.3d 234, 241(5th Cir. 2000) (three minutes); United States v. Dortch, 199 F.3d
193, 196, 198(5th Cir. 1999) (four minutes).
1. The Agents Failed to Exercise Diligence and Extended the
Detention Beyond a Reasonable Time with Dilatory Tactics and
Irrelevant Questioning
The thirty-four minute detention of Rynearson far exceeded the few minutes
reasonably necessary to ask a few questions regarding immigration status. That
facially fails the test established in Machuca-Barrera and violates the Fourth
Amendment.
The agents unlawfully extended the stop in three principal ways: delaying
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asking immigration-related questions while conducting unrelated investigations,
engaging in no apparent inspection or investigation whatsoever for eleven minutes,
and holding Rynearson for an additional ten to fifteen minutes while calling
Laughlin in order to confirm Rynearsons military identity and to engage in a
discussion with Security Forces and Rynearsons commander regarding the
checkpoint stop.
First, Lands delayed asking immigration-related questions while seeking
information on other, unrelated topics, failing the constitutional test that law
enforcement must diligently pursue[] a means of investigation that was likely to
confirm or dispel [the reason for the stop] quickly. United States v. Macias, 658
F.3d 509, 522(5th Cir. 2011)(internal quotation marks omitted). In the context of
a suspicionless immigration checkpoint stop, diligence requires pursuit of
information related to an individuals immigration status. Lands does not dispute
that the first time he asked Rynearson his immigration status was eleven minutes
into the stop. ROA.472; see ROA.258-ROA.260. Prior to that, he interrogated
Rynearson regarding his vehicle ownership, his military status, and his place of
assignment. ROA.335, ROA.337; Video, 1/0:26, 1/2:17-2:23. The district court
held that Lands initial questions regarding vehicle ownership could be considered
within the scope of the stop and did not significantly delay the stop. ROA.483.
But the court disregarded Lands lack of diligence in questioning Rynearson
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regarding his military assignment rather than his immigration status. ROA.483.
That is contrary to Supreme Court and this Courts precedent. An agent may not
unconstitutionally prolong [an individuals] detention by asking irrelevant and
unrelated questions without reasonable suspicion of criminal activity. Macias,
658 F.3d at 512.
Nor may an agent unconstitutionally prolong an individuals detention by
simply waiting and conducting no inspection at all. The district court held that
Rynearson, and not Lands, was solely responsible for the eleven-minute-long delay
in asking any questions about immigration status. ROA.484. As discussed further
below, there is no reasonable view of the evidence under which Lands entire delay
before asking the first question related to immigration status can be attributed to
Rynearson. See infra, pp. 30-33.
Moreover, Lands failed to exercise diligence in requesting and pursuing
immigration-related documents. Lands stated that he needed to inspect
Rynearsons identification, and began copying down information from the
identification Rynearson had placed on the windowa drivers license and a
military identification card. ROA.336-ROA.337; Video, 1/2:10-2:38. However,
Lands did not ask for a passport and did not acknowledge Rynearsons offer of a
passport, ROA.471, despite the fact that in Lands view the other identification
cards that Rynearson produced did not mean anything because they were not
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immigration documents, ROA.340; Video, 2/1:18-1:21. Diligence requires that
an agent inform an individual who produces irrelevant identification that it will not
suffice. At the least, an agent must respond to an offer of relevant documentation
(a passport)not sit on the knowledge that the produced documents are irrelevant
for approximately nine minutes before so informing the detainee. Compare
ROA.337; Video, 1/2:07 (Rynearson places identification in the window two
minutes into the stop), with ROA.340; Video, 2/1:18 (Lands states that
identification doesnt mean anything over eleven minutes into the stop). The
district court gives no plausible accounting of how Lands unvoiced pursuit of
physical inspection of documents he himself termed meaningless represented
diligence in pursuing the immigration-related scope of the stop.
Second, for much of the time that Rynearson was detained, neither Lands
nor the other agents pursued any investigation whatsoever. Specifically, counting
only the time prior to Perezs arrival, Rynearson waited for about ten minutes
while the agents pursued no investigation. See ROA.338-ROA.339, ROA.342;
Video, 1/5:06-9:52, 2/03:03-07:31. That time would have been even longer had
Rynearson not himself prompted Lands to engage in conversation and an
immigration inspection on several occasions, including the conversation in which
Lands for the first time asked aboutand received the answer regarding
Rynearsons immigration status. See ROA.339, ROA.341; Video, 1/9:53, 2/1:24
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(Rynearson asks the agents to re-engage in conversation, resulting in the
citizenship question about one minute later). After about ten minutes, Lands
indicated a supervisor had been called. ROA.340; Video, 2/0:32. The district
court held that summoning a supervisor was reasonable, ROA.485, but that does
not explain Lands abandonment of the inspection prior to that point. Furthermore,
neither Lands nor the government has provided any justification for calling an off-
site supervisor rather than referring the situation to the on-site supervisor. See
ROA.265 (Perez received a briefing from on-site supervisory agent upon his
arrival). That, too, fails the diligence test and unnecessarily extended the stop. Cf.
Dortch, 199 F.3d at 200(government unduly delayed arrival of canine unit when it
was not requested until 9-10 minutes into the stop and the officers offered no
justification for this delay).3
Third, as discussed below, the Defendants impermissibly extended
Rynearsons detention in order to pursue an irrelevant inquiry into Rynearsons
military status and to convey the details of the checkpoint encounter to individuals
associated with the Air Force, Rynearsons employer. See infra, pp. 42-48.
In sum, the agents violated the Fourth Amendment when they extended the
immigration stop long beyond the the amount of time reasonably necessary to
3Rynearson moved for a continuance to obtain limited discovery regarding, inter
alia, why Defendant Lands summoned an off-site supervisor, extending the
detention, when there appears to have been an on-site supervisor. ROA.298. The
district court denied all discovery, however. See infra, pp. 61-64.
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ask a few questions about immigration status. Machuca-Barrera, 261 F.3d at
435. Although the agents may choose between alternative efficient means in
pursuing the scope of the stopimmigration statusthey must diligently
pursue[] a means of investigation that is quick[]. United States v. Brigham, 382
F.3d 500, 511 (5th Cir. 2004) (en banc). The agents failed to conduct the
inspection diligently over the course of this thirty-four minute immigration
inspection when they (i) pursued unrelated lines of investigation, particularly
Rynearsons military status, for almost half of the stop; (ii) did not ask the first
immigration-related question until eleven minutes into the detention; (iii) failed to
inform Rynearson that his produced identification was meaningless until the
eleventh minute; (iv) failed to acknowledge or accept Rynearsons passport until
seventeen minutes into the stop; and (v) abandoned the inspection for long periods
of time while calling off-site personnel instead of using on-site supervisors.
2. The Agents Are Responsible for the Dilatory Tactics that Extended
the Detention
The district court upheld this extended detention on the ground that
Rynearsons actions were the sole reason for any delay in determining
immigration status. ROA.484. The district courts decision absolving the Border
Patrol agents of all responsibility for the conduct and length of the detention rests
on four critical errors.
First, the district courts holding that Rynearsons actions impeded and
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prohibited [the agents] from asking questions, placing the entire detention
outside of the officers control, ROA.486, disregarded the record evidence
favoring Rynearson. See Scott v. Harris, 550 U.S. 372, 378, 380(2007) (holding
court must view the facts and draw reasonable inferences in the light most
favorable to the party opposing summary judgment except where a fact is
blatantly contradicted by the record, so that no reasonable jury could believe it).
The district court identified four actions by Rynearson that purportedly prohibited
the agents from asking questions, understanding the answers, or conducting an
immigration inspection: refusing to lower his window, refusing to exit the vehicle,
challenging the agents authority, and refusing to hand over identification cards.
ROA.486. Viewed in the light most favorable for Rynearson, the record shows
that these actions did not occur or did not have the all-powerful effect of shutting
down the immigration inspection. Instead, Rynearson answered every single
question asked but one (the name of his commanding officer, ROA.344), and
cooperated with every single request other than exiting his vehicle and rolling
down his window for the first ten minutes of the detention.
a. There is no sense in which Lands was prohibited from asking
questions, ROA.486or from hearing and understanding the answers. Indeed,
the district court acknowledges as much, recognizing that Rynearsons actions did
not preclude Lands from ask[ing] for identification. ROA.484. The video
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documents that Lands asked exactly eight questions in the first half of the detention
(and another three questions when he released Rynearson). Rynearson answered
every single one of these questions, and Lands understood and confirmed every
single one of the answers without asking Rynearson to repeat himself. See
ROA.335-ROA.337, ROA.341; Video, 1/0:01-0:35, 1/2:17-2:23, 2/1:23-1:26.
From this interrogation, Lands learned that Rynearson owned the vehicle he was
driving, that he was in the military, that he was st
top related