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

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

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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.aspx

DOC MIRRORED TO:
http://copblock.org/rickrynearson
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.aspx

DOC MIRRORED TO:
http://copblock.org/rickrynearson

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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
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.

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
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
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.
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
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.
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
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.
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.
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
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
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
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.
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: AttorneyKallinen@aol.com
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












1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION

MAJ OR 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 J ustin 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 J ustin 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.
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 (5
th
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,
3

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.
4

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 (5
th
Cir. 1998) (dismissing 14
th
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 (5
th
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

3
Plaintiff’s allegation that the 14
th
Amendment applies is specious. Plaintiff specifically alleges
that the defendants were acting as agents of the federal government (First Amended Original
Complaint, ¶ 50).

5

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 (5
th
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 (5
th
Cir. 1995). “Personal involvement is an esse ntial element of a civil rights
6

cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5
th
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.
7

The Defendants are Border Patrol Agent J ustin 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 (5
th
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).
8

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
(5
th
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 (5
th
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 (5
th
Cir. 1996); Mitchell v. Forsyth, 472 U.S. at 530.
9

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 (5
th
Cir. 2012) (quoting
Brown v. City of Houston, 337 F.3d 539, 541 (5
th
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
10

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.
11

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 (5
th
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.
12

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
13

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 (5
th

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 (5
th
Cir. 2006) (quoting United States v. Machuca-Barrera, 261 F.3d 425, 433
14

(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
15

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.

16

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.
17

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
Harold.brown@usdoj.gov


18

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.
1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION

MAJ OR 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 J ustin 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 J uly 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).


2

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
3

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,
4

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
5

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).
6

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
7

decided to make a telephone call and simultaneously argue with Agent Lands rather than answer
Agent Lands’ questions (Exhibit D, Part 1, 00:02:33 to 00:04:05). His demeanor appeared
calculated to provoke Agent Lands, who chose to break off the exchange and summon a
supervisor to deal with Plaintiff.
Several minutes later the Plaintiff appears to have called the FBI and explained to them
that he was being detained at the Uvalde checkpoint (Exhibit D, Part 1, 00:06:47). He explains
to someone that he was directed to secondary without explanation, that he refused to exit his
vehicle or roll down his window, and that he was filming the encounter (Exhibit D, Part 1,
00:06:47 to 00:08:49). He falsely informed the person on the telephone that he was being
threatened by the Agents (Exhibit D, Part 1, 00:08:25 to 00:08:40). He also states repeatedly that
he believed that he could not be detained at secondary without reasonable suspicion and
whomever he was speaking to apparently advised him to comply with the Border Patrol 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).
8

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).

9

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
Harold.brown@usdoj.gov

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.




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
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
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
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
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
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
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
/ 'J\'\
Executed on August .;:;Z ,2012. /' ///,1. I
//   /
/ '
RAUL PEREZ .
4
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.
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
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
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
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< // /'
( /'
.. / ;i/V i
      //7
_.
PEREZ' c:......
3
1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION

MAJ OR 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 J udgment (Docket
No. 29).

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 (5
th
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).
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, J R.
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)
harold.brown@usdoj.gov


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.

5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION

MAJ OR 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
J udgment (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.

6

Signed this __________ day of ______________________, 2012.

________________________________________
ALIA MOSES
UNITED STATES DISTRICT JUDGE




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:
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 (5
th
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.
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
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.
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
PLAINTIFF’S MOTION FOR CONTINUANCE Page 6

IMMIGRATION CHECKPOINT STOPS AND DETENTIONS
1

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)

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
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.

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: AttorneyKallinen@aol.com
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


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:
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: AttorneyKallinen@aol.com
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
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 ?;
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.
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
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
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
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
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.
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.
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
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,
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.
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
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
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.
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.
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 11

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
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 12

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.
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 13

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
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 14

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).
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 15

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
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 16

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
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 17

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
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 18

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
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 19

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.
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 20

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.





PLAINTIFF’S RESPONSE TO MOTION TO DISMISS/SUMMARY JUDGMENT Page 21



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: AttorneyKallinen@aol.com
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

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
)
)
)
)
)
)
)
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.
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
PLAINTIFF’S FACT APPENDIX Page 4

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
PLAINTIFF’S FACT APPENDIX Page 5

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
PLAINTIFF’S FACT APPENDIX Page 6

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
PLAINTIFF’S FACT APPENDIX Page 7

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
PLAINTIFF’S FACT APPENDIX Page 8

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
PLAINTIFF’S FACT APPENDIX Page 9

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
PLAINTIFF’S FACT APPENDIX Page 10

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
PLAINTIFF’S FACT APPENDIX Page 11

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.”
PLAINTIFF’S FACT APPENDIX Page 12

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
PLAINTIFF’S FACT APPENDIX Page 13

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,
PLAINTIFF’S FACT APPENDIX Page 14

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:
PLAINTIFF’S FACT APPENDIX Page 15

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
PLAINTIFF’S FACT APPENDIX Page 16

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.
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
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.















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: AttorneyKallinen@aol.com
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


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.
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. Thi s, 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.
,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

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
Inspector's Field Manual
(d) Entrv of Lands Wi thi n 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
1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION

MAJ OR 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 J ustin 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
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
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
(5
th
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
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
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.”
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 (5
th
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
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.



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
Harold.brown@usdoj.gov

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.



1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION

MAJ OR 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 J ustin 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.
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 (5
th
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.

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
Harold.brown@usdoj.gov

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.




0UNITED STATES DISTRICT COURT
WESTERN 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 HISTORY
1
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 recorded
1
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.
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
2
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
3
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.
4
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
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
6
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 unable
2
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. This
2
motion is addressed in a separate report and recommendation.
7
and they are therefore entitled to qualified immunity. Rynearson, in response, asks for the
3
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 course
3
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.
8
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
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 law
4
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 to
5
Lands and Perez, there is no sense in construing Count Five as another tort claim.
10
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 brought
6
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.
11
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 are
7
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).
12
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 ‘in
8
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.
13
“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
14
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
15
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
16
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 the
9
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 immunity
9
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.

17
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
18
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. Case
10
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.
19
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
20
therefore had no way to verify Rynearson’s citizenship. In addition, because of Rynearson’s
12
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 sitting
12
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.
21
from other drivers. Keeping his window rolled up, refusing to exit his vehicle, constantly making
13
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 of
13
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.”).
22
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
23
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).
24
(“[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 without
16
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.
25
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 discrepancies
17
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).
26
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
27
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
28
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)).
29
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 discovery
18
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).
30
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 WHITE
UNITED STATES MAGISTRATE JUDGE
31
UNITED STATES DISTRICT COURT
WESTERN 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 WHITE
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
WESTERN 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. 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 HISTORY
1
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 recorded
1
during the March 18, 2010 stop at the Uvalde County, Texas checkpoint. (ECF No. 38.) The video was posted on
Youtube as well as http//www.pickyourbattles.net.
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
2
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.
3
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
4
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 that
2
Counts One, Two, and Three have already been resolved as to Agent Lands and Agent Perez. On August 3, 2012, the
2
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
5
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 entered
as to all claims that would properly fall under the Federal Tort Claims Act, specifically Counts One, Two, and Three of
the amended complaint. (ECF No. 25.)
6
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 action
3
under the Fifth, Sixth, and Fourteenth Amendments or for supervisory liability. He requests leave to amend the
complaint to combine Count Four and Count Five into one count to state a Bivens claim for a Fourth Amendment
7
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.
8
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.”
9
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
10
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.
11
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
12
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.
13
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 seconds
4
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 challenges
4
the overall duration of his own detention.
14
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
15
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
16
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).
17
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
18
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
19
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 the
complaint is to be liberally construed in favor of the plaintiff. Second, a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim that would entitle
him 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 Unreasonable
Search, 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
20
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 Bivens
5
action for false imprisonment and unreasonable search and seizure) be dismissed as duplicative of the allegations in
Count Two (false arrest and imprisonment) and Count Four (violation of Fourth Amendment right for wrongful
detention). Instead, he seeks leave of the Court to state a singular Bivens claim for unreasonable detention under the
Fourth Amendment. This Court will not permit Rynearson to amend the complaint, but instead will consider the
unreasonable detention claim in conjunction with Count Four. The Court will not reconsider the false imprisonment
claim of Count Five. Count Two alleged an identical false imprisonment claim, and has already been dismissed due to
lack of subject matter jurisdiction.
21
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,
22
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
23
(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
24
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
25

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