NO.

15-_____

In the
Supreme Court of the United States
RICHARD RYNEARSON,
Petitioner,
v.
AGENT LANDS, BORDER PATROL AGENT, INDIVIDUALLY,
AND RAUL PEREZ, BORDER PATROL AGENT,
INDIVIDUALLY.
________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Fifth Circuit
________________
PETITION FOR A WRIT OF CERTIORARI
________________
Ruthanne M. Deutsch
Washington, DC

J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, TX 75206
(469) 600-9455
ccecere@cecerepc.com

QUESTION PRESENTED
In United States v. Martinez-Fuerte, this Court
held that the Fourth Amendment permits the United
States Border Patrol to maintain fixed checkpoints
along roadways within 100 miles from the national
border, where all travelers are seized even without
individualized suspicion that they entered the
country illegally or are otherwise engaged in criminal
activity. 428 U.S. 543 (1976). Such blanket intrusion
on travelers’ liberty, this Court emphasized, is
justified only by the stringent “limitations on the
scope” of the permissible inquiry, allowing no more
than “a brief question or two” regarding the traveler’s
citizenship “and possibly the production of a
document evidencing a right to be in the United
States.” Id. at 558, 567.
Petitioner was detained at an internal
immigration checkpoint for 23 minutes after he
affirmed his citizenship and offered two valid U.S.
passports, during which time the agents spent nearly
15 minutes on multiple phone calls reporting the
encounter to his employer. The Fifth Circuit held
that this extended detention was permissible without
any reasonable suspicion that Petitioner was
involved in criminal activity.
The question presented is:
Whether border patrol agents have fair warning
that, in the absence of reasonable suspicion of
criminal activity, the Fourth Amendment prohibits
unrelated inquiries that measurably extend the
duration of an internal immigration checkpoint
detention beyond the few minutes a reasonably
diligent agent would need for an immigration
inquiry.
(i)

ii
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 2
CONSTITUTIONAL
AND
STATUTORY
PROVISIONS INVOLVED...................................... 2
STATEMENT OF THE CASE ................................... 2
A. Factual Background ..................................... 4
B. Procedural History ....................................... 7
REASONS FOR GRANTING CERTIORARI .......... 11
I.

THE COURT SHOULD REVIEW THE
FIFTH CIRCUIT’S RULE THAT A
REASONABLE
OFFICER
COULD
BELIEVE THE CONSTITUTION ALLOWS
EXTENSION OF AN IMMIGRATION
DETENTION
FOR
UNRELATED
INVESTIGATION WITHOUT SUSPICION
OF CRIMINAL WRONGDOING. ..................... 14
A. The Fifth Circuit’s Decision Disregards
Fundamental Limitations Imposed By
This Court That Are Applicable To
Immigration Checkpoint Detentions. ........ 14
B. The Fifth Circuit’s Rule Permitting
Extended
Detentions
To
Pursue
Unrelated Inquiries If A Detainee’s
Behavior Is “Unorthodox” Creates A
Multi-Layered Circuit Conflict. ................. 21
1. The Fifth Circuit rule permitting
extended detentions for unrelated
inquiries
without
individualized

iii
suspicion diverges from Ninth and
Tenth Circuit law. .................................... 21
2. The Fifth Circuit split from other
circuits by holding that no clearly
established law prohibits officers from
prolonging a detention based on
detainee conduct that did not
contribute to the complained-of delay. ..... 27
C. The Proper Scope Of An Immigration
Checkpoint Seizure Is An Exceptionally
Important Question. ................................... 31
II. AT A MINIMUM, THIS CASE SHOULD BE
REMANDED
FOR
FURTHER
CONSIDERATION IN LIGHT OF LAST
TERM’S DECISION IN RODRIGUEZ. ............ 35
CONCLUSION ......................................................... 39
APPENDIX
Opinion of the United States Court of Appeals
for the Fifth Circuit (February 26, 2015) .......... 1a
Opinion and Order of the United States
District Court for the Western District of
Texas (September 30, 2013) ............................. 19a
Report
and
Recommendation
of
the
Magistrate Judge for the United States
District Court for the Western District of
Texas (June 27, 2013) ...................................... 50a
Order of the United States Court of Appeals
for the Fifth Circuit Denying Petition for
Rehearing En Banc (May 4, 2015) ................... 90a
Plaintiff’s Fact Appendix (Excerpt) (October
15, 2012) ........................................................... 92a

iv
TABLE OF AUTHORITIES
CASES:
Arizona v. Johnson,
555 U.S. 323 (2009) .............................................. 17
Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics,
403 U.S. 388 (1971) ................................................ 7
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) .........................................passim
Florida v. Royer,
460 U.S. 491 (1983) .............................................. 16
Illinois v. Caballes,
543 U.S. 405 (2005) ........................................ 16, 17
Illinois v. Lidster,
540 U.S. 419 (2004) .............................................. 15
Karnes v. Skrutski,
62 F.3d 485 (3d Cir. 1995) ............................. 29, 30
Lawrence v. Chater,
516 U.S. 163 (1996) (per curiam) ................... 36, 37
Liberal v. Estrada,
632 F.3d 1064 (9th Cir. 2011) ........................ 28, 29
Mich. Dep’t of State Police v. Sitz,
496 U.S. 444 (1990) .............................................. 15

v
Muehler v. Mena,
544 U.S. 93 (2005) ................................................ 17
New York v. White,
796 N.Y.S.2d 902 (N.Y. Sup. Ct. 2005) ................ 32
Pearson v. Callahan,
555 U.S. 223 (2009) ................................................ 8
Rodriguez v. United States,
135 S. Ct. 1609 (2015) ...................................passim
Scott v. Harris,
550 U.S. 372 (2007) ................................................ 4
Seymour v. City of Des Moines,
519 F.3d 790 (8th Cir. 2008) ................................ 30
Terry v. Ohio,
392 U.S. 1 (1968) .............................................. 3, 16
Tolan v. Cotton,
134 S. Ct. 1861 (2014) (per curiam) ..................... 15
United States v. Brignoni-Ponce,
422 U.S. 873 (1975) .......................................... 3, 16
United States v. Ellis,
330 F.3d 677 (5th Cir. 2003) ................................ 37
United States v. Jennings,
468 F.2d 111 (9th Cir. 1972) ................................ 29
United States v. Machuca-Barrera,
261 F.3d 425 (5th Cir. 2001) .................... 18, 22, 24

vi
United States v. Martinez-Fuerte,
428 U.S. 543 (1976) .......................................passim
United States v. Massie,
65 F.3d 843 (10th Cir. 1995) .................... 22, 23, 25
United States v. Portillo-Aguirre,
311 F.3d 647 (5th Cir. 2002) .......................... 18, 25
United States v. Sharpe,
470 U.S. 675 (1985) .............................................. 19
United States v. Taylor,
934 F.2d 218 (9th Cir. 1991) .................... 22, 23, 25
Wilson v. Lane,
526 U.S. 603 (1999) .............................................. 30
CONSTITUTION AND STATUTES:
U.S. CONST., Amend. IV ................................... passim
28 U.S.C.
§ 1254(1) ................................................................ 2
RULES:
Fed. R. App. P. 28(j).................................................. 36
OTHER AUTHORITIES:
Am. Civil Liberties Union of Ariz., Complaint
and Request for Investigation (Jan. 15,
2014) ................................................................... 33

vii
Am. Civil Liberties Union of N.M., Guilty
Until Proven Innocent: Living In New
Mexico’s 100-Mile Zone (May 2015) .................. 33
Gov’t Accountability Office, Report No. 05-435
(July 2005) ...................................................... 2, 32
Gov’t Accountability Office, Report No. 09-824
(Aug. 2009) ................................................... 32, 33

In the
Supreme Court of the United States
________________
NO. 15-_____
RICHARD RYNEARSON,
Petitioner,
v.
AGENT LANDS, BORDER PATROL AGENT, INDIVIDUALLY,
AND RAUL PEREZ, BORDER PATROL AGENT,
INDIVIDUALLY.
________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Fifth Circuit
________________
PETITION FOR A WRIT OF CERTIORARI
________________
Petitioner Richard Rynearson respectfully
petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Fifth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-18a)
is unpublished, but reported at 601 F. App’x 302.
The district court’s opinion (App. 19a-49a) and
magistrate judge’s opinion (App. 50a-89a) are
unpublished.

(1)

2
JURISDICTION
The Court has jurisdiction under 28 U.S.C.
§ 1254(1). The judgment of the court of appeals was
entered on February 26, 2015. Petitioner timely filed
a petition for rehearing en banc, which was denied on
May 4, 2015.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth Amendment to the U.S. Constitution
provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath
or affirmation, and particularly describing
the place to be searched, and the persons or
things to be seized.
STATEMENT OF THE CASE
In addition to checkpoints located at official
ports of entry into the United States, the United
States Border Patrol operates a network of fixed
traffic checkpoints in the nation’s interior along
major roads up to 100 miles from the border. United
States v. Martinez-Fuerte, 428 U.S. 543, 553 (1976);
See Gov’t Accountability Office, Report No. 05-435, at
1-2 (July 2005). At these checkpoints, Border Patrol
agents stop, seize, and interrogate each traveler,
without individualized suspicion that any traveler
entered the country illegally or is otherwise involved
in criminal activity. See Martinez-Fuerte, 428 U.S. at
545-47, 549-50.

3
The Fourth Amendment’s protection from
“unreasonable searches and seizures,” U.S. Const.,
Amend. 4, normally makes any such “seizure ***
unreasonable” in the “absence of individualized
suspicion of wrongdoing.” City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000). In Martinez-Fuerte,
this Court nevertheless upheld this system of
internal immigration checkpoints because of the
unique problem of “[i]nterdicting the flow of illegal
entrants,” 428 U.S. at 552, emphasizing that this
blanket intrusion on all travelers’ liberty is justified
only because the “intrusion on Fourth Amendment
interests” is “quite limited,” id. at 557. Because the
“sole purpose” of the detention is for “conducting a
routine and limited inquiry into residence status,” id.
at 560, the detention should “usually consume[] no
more than a minute,” United States v. BrignoniPonce, 422 U.S. 873, 880 (1975) (describing identical
parameters for roving stops), or perhaps up to five
minutes for travelers referred to a secondary
inspection area, Martinez-Fuerte, 428 U.S. at 547.
The seizure should extend long enough only for a
“brief question or two and possibly the production of
a document evidencing a right to be in the United
States.” Id. at 558.
These “appropriate limitations on the scope” of
immigration checkpoint detentions are crucial for
their constitutionality. Id. at 567. Detentions short
of arrest must not “exceed[] the time needed to
handle the matter for which the stop was made.”
Rodriguez v. United States, 135 S. Ct. 1609, 1612
(2015). This principle, derived from Terry v. Ohio,
392 U.S. 1 (1968), applies to all non-arrest
detentions, but is even more vital in the context of

4
immigration checkpoint detentions, already an
intrusive exception to the foundational Fourth
Amendment rule that government officials may not
detain people that are not suspected of having
committed any crime. Edmond, 531 U.S. at 37.
Border patrol agents have thus known for
decades that these strict confines on the scope of
suspicionless immigration detentions are the
constitutional bedrock upon which the entire system
of interior checkpoints is built. Yet the Fifth Circuit
jettisoned those limits in this case, creating
fundamental conflicts among the courts of appeals.
First, the Fifth Circuit, unlike other circuits, allows
agents to extend the duration of the detention beyond
the few minutes necessary for the immigration
inquiry to permit investigation of unrelated matters.
Second, the Fifth Circuit’s justification for permitting
that extended detention—conduct of the detainee
that did not contribute to the relevant delay—has
been rejected under clearly established law in other
circuits. This Court’s review is needed to harmonize
the law governing these suspicionless detentions, and
to ensure that vital Fourth Amendment rights are
respected during these routine intrusions on all
travelers’ liberty.
A.

Factual Background

Because
the
district
court
dismissed
Rynearson’s claim on summary judgment prior to
Respondents’ answer or any discovery, what follows
is “the plaintiff’s version of the facts.” Scott v.
Harris, 550 U.S. 372, 378 (2007).
1. Petitioner Richard Rynearson is an officer in
the United States Air Force who was once stationed

5
at Laughlin Air Force Base, near Del Rio, Texas.
App. 2a, 93a.
In March 2010, while traveling
between Del Rio and San Antonio—a route that
crosses no international border—Rynearson was
detained for 34 minutes at the Border Patrol’s
interior checkpoint near Uvalde, Texas. Id. at 2a, 4a.
2.
When Rynearson first arrived at the
checkpoint, Agent Lands asked him whether he
owned the car he was driving, but asked nothing
about his citizenship. Id. at 95a-96a. Lands then
referred Rynearson to a secondary inspection area.
Once there, as Agent Lands admitted in his
declaration, the agent then requested—but “did not
direct”—that Rynearson exit his car, and when
Rynearson declined to do so, Agent Lands decided to
complete the remainder of the investigation with
Rynearson in his vehicle, R. 274. A second agent who
would later appear on the scene, Agent Perez, never
requested that Rynearson exit his vehicle. App.
103a-104a.
When Lands then asked Rynearson to display
his identification, Rynearson placed his driver’s
license and military identification in the window
where they could be read from outside the vehicle.
Id. at 3a. Agent Lands never asked to physically
inspect these documents.
Id. at 97a.
Once
Rynearson had displayed the documents, he and
Agent Lands engaged in a discussion during which
Rynearson questioned Agent Land’s authority to
detain him for an extended period, but nonetheless
answered every question posed to him, including
questions about his military status and assigned
base. Id. at 3a, 96a-103a. Although the car window

6
was rolled up or partially rolled up through much
(but not all) of the detention, both Rynearson and
Agent Lands could hear one another. Id.
3. It was several minutes into this sometimes
heated discussion, and 11 minutes into the detention,
before Lands informed Rynearson that the
identification documents he had displayed “don’t
mean anything.” Id. at 11a (Elrod, J., dissenting).
That complaint caused Rynearson to offer,
unprompted, his official and private passports for
inspection. Id. at 12a.
Agent Lands ignored this offer, and instead, for
the first time during the detention, asked Rynearson
whether he was a U.S. citizen, to which Rynearson
responded that he was. Id. But Rynearson was not
permitted to leave, and Agent Lands still did not ask
to see his passports. Id.
4. Almost 18 minutes into the detention, Agent
Perez finally asked for Rynearson’s passports, and
Rynearson immediately surrendered them. Id. at 3a;
id. at 12a (Elrod, J., dissenting). Agent Perez stated
that he would review Rynearson’s passports and
Rynearson would be on his way. Id. at 104a. Instead
of inspecting the passports, however, Agent Perez
asked Rynearson several additional questions about
his military assignment. Rynearson answered all of
them but one: he declined to identify his commanding
officer. Id. at 3a; id. at 12a (Elrod, J., dissenting).
After considering Rynearson’s objection, Agent Perez
agreed that Rynearson did not have to answer that
question and left with Rynearson’s passports. Id. at
106a.

7
The parties dispute the precise sequence of
events at this point, but viewed in the light most
favorable to Rynearson, Agent Perez then examined
the passports and determined that Rynearson was an
American citizen.
Id. at 106a; R. 266 (Perez
declaration).
Agent Perez then returned a few
minutes later and asked Rynearson to again confirm
his assigned base, which he did. App. 106a. Agent
Perez then informed Rynearson that he planned to
call Rynearson’s assigned base and again left. Id.
Agent Perez subsequently spent up to 15 minutes
making calls to Laughlin Air Force Base, including a
call to Rynearson’s commander. Id. at 12a (Elrod, J.,
dissenting); R. 279, 358. Agent Perez made the calls
to discuss Rynearson’s military identity and to
“inform[]” Rynearson’s superiors of “the encounter.”
R. 279 (Perez declaration). After completing the
phone calls—some 23 minutes after Rynearson
offered his passports to Agent Lands—Agent Perez
finally instructed Agent Lands to release Rynearson.
App. 12a-13a (Elrod, J., dissenting).1
B.

Procedural History

1.
Rynearson brought Fourth Amendment
claims against the agents under Bivens v. Six
Unknown Named Agents of Federal Bureau of
Rynearson recorded a video of the entire encounter, which
is available in four parts at:
1

https://www.youtube.com/watch?v=4BId1f8WG2s;
https://www.youtube.com/watch?v=NqU9M9RyeZA;
https://www.youtube.com/watch?v=o8GDNFleCI8; a n d
https://www.youtube.com/watch?v=mZbCCBH7YM4.

8
Narcotics, 403 U.S. 388 (1971). The agents moved for
summary judgment on their qualified immunity
defense. Qualified immunity is not available if two
conditions are met: “the facts *** alleged *** make
out a violation of a constitutional right,” and “the
right at issue was ‘clearly established’ at the time of
[the] alleged misconduct.” Pearson v. Callahan, 555
U.S. 223, 232 (2009). Courts have discretion to
decide the order in which to engage these questions.
Id. at 236.
2.
The district court granted the agents’
summary judgment motion, determining that they
enjoyed qualified immunity because Rynearson had
not established a constitutional violation. App. 35a.
With respect to the first part of the detention, the
district court concluded 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.” Id. at 38a.
The district court separately addressed the
nearly 15 minutes that Agent Perez expended with
calls to the Air Force, during which Rynearson had
no interaction with the agents. Id. at 40a-41a. It
held that even this period did not unreasonably
extend the detention, on the basis of its factual
conclusion, see supra at 7, that Agent Perez made the
phone calls before verifying Rynearson’s citizenship
from his passports, App. 41a. Following Fifth Circuit
precedent, the district court held that a suspicionless
immigration checkpoint detention can only be
“impermissibly
lengthen[ed]”
by
“continued
questioning after the confirmation of citizenship” not
questioning that occurred before. Id. (emphasis in

9
original) (citing United States v. Valdez, 267 F.3d
395, 398-99 (5th Cir. 2001)).
As an alternative basis for affirming the
reasonableness of the detention, the district court
determined that the agents developed “reasonable
suspicion” justifying a Terry stop that Rynearson was
involved in drug trafficking as a result of what it
called Rynearson’s “combative behavior.” App. 38a39a.
3.
On appeal, the government disclaimed
reasonable suspicion as justification for the
detention, and the members of the Fifth Circuit panel
unanimously agreed that the detention was not
based on reasonable suspicion. Id. at 7a (noting that
Agents Perez and Lands were exercising “a grant of
authority” that was “readily distinguishable from the
authority granted by Terry”); see also id. at 16a n.7
(Elrod, J., dissenting) (describing and accepting the
government’s concession at oral argument).
A
majority of the divided panel nevertheless affirmed.
a. The majority rejected Rynearson’s arguments
that the agents had detained him for an
unreasonable time by “intentionally extending the
duration of his detainment” and “calling his military
base to inquire into his military status.” Id. at 7a.
The majority held that the detention’s length was
reasonable, because “the agents had difficulty
determining how to respond to his unorthodox
tactics,” including his assertion of “his right against
unlawful searches and seizures.” Id. at 8a. The
majority concluded that the agents “at worst, made
reasonable but mistaken judgments when presented
with an unusually uncooperative person.” Id.

10
The majority also affirmed the district court’s
conclusion that even the second portion of the
detention after Rynearson provided his passports—
during which Agent Lands refused to consider them,
Agent Perez made phone calls to Rynearson’s base
unrelated to citizenship, and Rynearson had little to
no interaction with the agents—was similarly
justified. Id. at 7a.2
b. Judge Elrod dissented. She noted that
Rynearson “asserted his rights while also providing
the documentation needed to prove his citizenship
status,” and stressed that he had produced
identifying documents as early as two minutes into
the detention. Id. at 10a-11a (Elrod, J., dissenting).
Judge Elrod determined that, for their part, Agents
Lands and Perez “did not expeditiously investigate
Rynearson’s citizenship status.” Id. at 11a. “Agent
Lands refused to examine [Rynearson’s] passports,
and Agent Perez, rather than simply scrutinizing the
passports, asked Rynearson to identify his
commanding officer and then made Rynearson wait
while he placed phone calls to Rynearson’s
employer.” Id. at 10a.
“Putting aside the dilatory nature of the stop as
a whole,” Judge Elrod concluded that “at a bare
minimum, once Rynearson offered his passports to
Agent Lands, any further detention other than the
Because the majority recognized that the Border Patrol
may not continue a detention after completing the citizenship
inquiry, App. 6a, the majority (like the district court, supra at 8)
also necessarily concluded that Perez made the phone calls to
the Air Force before he examined Rynearson’s passports.
2

11
couple of minutes required to authenticate the
passports was unnecessary.”
Id. at 15a.
Yet
Rynearson was detained an additional 23 minutes
while Agent Perez “wasted ten to fifteen minutes
placing unnecessary phone calls.” Id.
Responding to the majority’s assertion that this
added time was warranted by Rynearson’s
“unorthodox” tactics, Judge Elrod noted that “while
he provided the information needed to prove his
citizenship, Rynearson explained several times that
he would not indulge the officers’ commands when he
thought that they exceeded the limited scope of the
immigration
checkpoint
inquiry,”
and
that
“[s]tanding on one’s rights is not an ‘unorthodox
tactic[].’ It is a venerable American tradition.” Id. at
11a (second alteration in original).
Finally, Judge Elrod noted that while evidence
of the agents’ “subjective intentions is not relevant to
the qualified immunity defense,” she could not
“escape the impression that Agent Lands’s refusal to
look at the passports and Agent Perez’s irrelevant
phone calls to Rynearson’s employer operated as
retribution against Rynearson for asserting his
rights.” Id. at 15a & n.6.
c. The Fifth Circuit denied rehearing en banc.
REASONS FOR GRANTING CERTIORARI
The Fifth Circuit’s decision upholds an
immigration checkpoint detention lasting 34
minutes, which included more than 20 minutes after
Rynearson offered two valid U.S. passports. It held
this prolonged detention was justified because of
Rynearson’s “unorthodox tactics,” including his

12
assertion of “his right against unlawful searches and
seizures,” App. 8a, regardless of whether that
behavior contributed to the added time.
This petition challenges only this second, 23minute, phase of the detention, which alone far
exceeded the time needed for a question or two or the
production of an immigration document, and was
unrelated to any so-called “unorthodox tactics” by
Rynearson.
The Fifth Circuit’s decision that even this period
was reasonable condones suspicionless immigration
checkpoint detentions that are clearly prohibited by
the Constitution and this Court’s precedent. As this
Court has made clear for decades, the Fourth
Amendment permits a suspicionless seizure at an
interior immigration checkpoint only if: the detention
is “brief,” Martinez-Fuerte, 428 U.S. at 558; the scope
of the detention is “carefully tailored to its
underlying justification” and not prolonged by
“unrelated investigations,” Rodriguez, 135 S. Ct. at
1614 (internal quotation marks omitted); and the
agents pursue the detention’s purpose diligently, id.
at 1616.
The Fifth Circuit’s law conflicts with all three of
these mandates. It permits protracted detentions in
lieu of the very brief inquiry this Court’s cases
permit, even when the additional time was spent on
unrelated inquiries, and in the absence of any
suspicion of criminal activity. Further, it excuses
these excesses on the basis of the detainee’s
“unorthodox tactics” even though it is uncontroverted
that Rynearson had nothing to do with the additional
23-minute delay.

13
In departing from this Court’s clearly
established law, the Fifth Circuit also dispenses with
clear protections hewed to in the other circuits. The
Ninth and Tenth Circuits demand that routine
checkpoint detentions confine their scope to inquiries
relevant to the agents’ duties—i.e., to investigate
whether travelers are lawfully present in the
country—and require some suspicion of criminal
activity before permitting any extension of the
detention. By permitting detentions to be extended
without any suspicion of criminal wrongdoing—at
least if the extension comes before the completion of
the immigration inquiry—the Fifth Circuit departed
from even these limited protections for checkpoint
detainees.
The Fifth Circuit’s justification for this extended
detention for non-immigration inquiries opened yet
another divide in circuit authority. By excusing the
agents’ obligation of reasonable diligence on the basis
of the detainee’s conduct, the Fifth Circuit created a
conflict with three other circuits. Those courts hold
that even if a detainee’s conduct causes some part of
the length of a detention, it is clearly established that
further detention unrelated to the detainee’s actions
is unreasonable unless the officers demonstrate that
the delay happened in spite of their reasonable
diligence.
The appropriate scope of internal immigration
checkpoint detentions presents a question of
exceptional importance to the more than 100 million
motorists facing increasingly intrusive inquiries at
these checkpoints every year. This Court should
grant certiorari to review the Fifth Circuit’s

14
misguided rejection of fundamental principles
regarding the scope of a permissible suspicionless
detention, and to protect vital Fourth Amendment
liberties.
At the least, this Court should grant, vacate,
and remand this case for further consideration of
Rodriguez,
which
reiterated
long-standing
limitations on seizures short of arrest, including that
conducting an unrelated inquiry cannot “prolong[]—
i.e., add[] time to—the stop,” regardless of whether it
occurs “before or after” the completion of the purpose
justifying the stop. Id. at 1616 (internal quotation
marks omitted).
I.

THE COURT SHOULD REVIEW THE
FIFTH
CIRCUIT’S
RULE
THAT
A
REASONABLE OFFICER COULD BELIEVE
THE
CONSTITUTION
ALLOWS
EXTENSION
OF
AN
IMMIGRATION
DETENTION
FOR
UNRELATED
INVESTIGATION WITHOUT SUSPICION
OF CRIMINAL WRONGDOING.
A. The Fifth Circuit’s Decision Disregards
Fundamental Limitations Imposed By
This Court That Are Applicable To
Immigration Checkpoint Detentions.

One may “rather doubt that the Framers of the
Fourth
Amendment
would
have
considered
‘reasonable’ a program of indiscriminate stops of
individuals not suspected of wrongdoing,” Edmond,
531 U.S. at 56 (Thomas, J., dissenting). Even so, this
Court has upheld such blanket suspicionless seizures
in a small number of special circumstances, serving

15
acute and particular law enforcement needs, when
those seizures operate within certain wellestablished “limitations on the scope of the stop”
necessary to protect Fourth Amendment liberties.
Martinez-Fuerte, 428 U.S. at 567. The Fifth Circuit
breaks with this Court’s precedent by disregarding
three such limitations on the permissible scope of
suspicionless detentions: brevity, purpose, and
reasonable diligence.
First, this Court has approved suspicionless
seizures only when they are strikingly brief. It
approved the system of fixed immigration
checkpoints at issue here only in light of the Border
Patrol’s assurance that the stops took no longer than
5 minutes. Id. In all other contexts in which the
Court has approved suspicionless checkpoint
seizures, the stops lasted mere seconds. See Illinois
v. Lidster, 540 U.S. 419, 422 (2004) (10 to 15 seconds
for checkpoints seeking witnesses to an earlier
event); Mich. Dep’t of State Police v. Sitz, 496 U.S.
444, 448 (1990) (25 seconds for sobriety checkpoints).
This Court has thus instructed that permissible
intrusions be measured objectively in seconds, or, at
the outside, mere minutes, giving border patrol
agents “fair warning” of these severely circumscribed
time limits. Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (quoting Hope v. Pelzer, 536 U.S.
730, 741 (2002)). The Fifth Circuit disregarded
entirely the requirement to consider the overall
brevity—or lack thereof—of the detention. Locating
the precise limit of a “brief” detention may be hard,
but it is clear that an already lengthy detention that
is further extended by more than 20 minutes falls far
wide of that mark.

16
Second, this Court has firmly tethered the
permissible duration of all non-arrest detentions to
their justifying purposes, limiting them to “the time
needed to handle the matter for which the stop was
made.” Rodriguez, 135 S. Ct. at 1612. This principle,
derived from Terry’s holding that a seizure based on
less than probable cause must be “reasonably related
in scope to the circumstances which justified the
interference in the first place,” 392 U.S. at 20, has
been invoked in countless cases since, involving every
kind of seizure short of arrest. See, e.g., Illinois v.
Caballes, 543 U.S. 405, 407 (2005) (seizure may not
be “prolonged beyond the time reasonably required to
complete [its] mission”) (traffic stop); Florida v.
Royer, 460 U.S. 491, 500 (1983) (“The scope of the
detention must be carefully tailored to its underlying
justification.”) (investigative stop); Brignoni-Ponce,
422 U.S. at 881 (“As in Terry, the stop and inquiry
must be ‘reasonably related in scope to the
justification for their initiation.’”) (quoting Terry, 392
U.S. at 29) (roving immigration stop). It applies with
equal or greater force to immigration checkpoint
detentions, because they can be conducted without
any suspicion at all, and thus must be limited to, and
conducted
within,
some
more
restricted
“programmatic purpose” than a “general interest in
crime control.” Edmond, 531 U.S. at 42, 46; see also
Martinez-Fuerte, 428 U.S. at 567 (citing Terry and
Brignoni-Ponce for the “appropriate limitations on
the scope of the stop”) (immigration checkpoint stop).
Accordingly, anything beyond the time for a
“brief question or two and possibly the production of
a document evidencing a right to be in the United
States,” which the Court anticipated would take a

17
maximum of 5 minutes, is unreasonable. MartinezFuerte, 428 U.S. at 547, 558.
A corollary of this requirement is that any
seizure short of arrest—but especially a suspicionless
seizure—becomes unlawful if lengthened beyond this
permissible purpose-based timeframe by “unrelated
investigations” without additional justification.
Rodriguez, 135 S. Ct. at 1614; see also Arizona v.
Johnson, 555 U.S. 323, 333 (2009) (An “officer’s
inquiries into matters unrelated to the justification
for the traffic stop” “convert the encounter into
something other than a lawful seizure” if “those
inquiries *** measurably extend the duration of the
stop.”); Caballes, 543 U.S. at 407; see also, e.g.,
Muehler v. Mena, 544 U.S. 93, 101 (2005) (holding, in
suit under 42 U.S.C. § 1983, that suspicionless
seizure of individual on premises during execution of
search warrant would be invalid if “the detention was
prolonged by [unrelated] questioning”). It does not
matter whether the unrelated inquiry occurs before
or after the mission of the stop is completed—it only
matters whether it “adds time” to the stop beyond the
“‘time reasonably required to complete [the stop’s]
mission.’” Rodriguez, 135 S. Ct. at 1616 (quoting
Caballes, 543 U.S. at 407; alteration in original).
The
Fifth
Circuit’s
decision
upholding
Rynearson’s detention disregards these wellestablished purpose-based limits on the scope of an
immigration checkpoint detention.3 It is undisputed
The Fifth Circuit might have been thought to recognize
these limits when it stated that agents “may ask questions
outside the scope of the stop only so long as such questions do
3

18
that the extra 15 minutes Agent Perez spent with
calls to the Air Force and Rynearson’s commander
alone added time to the detention beyond that
necessary to complete the immigration inquiry. This
time-frame is well beyond the 5 minutes anticipated
in Martinez-Fuerte, 428 U.S. at 547, or the “couple of
minutes” Agent Lands admitted it would take to
verify Rynearson’s passports after they were offered,
App. 13a (Elrod, J., dissenting). To make matters
worse, Agent Perez admitted that he completed the
tasks relevant to the mission—here, reviewing
Rynearson’s passports—separate and apart from, not
during, the phone calls, which further exacerbated
the delay.
The purpose of these calls was also avowedly
unrelated to immigration. Perez admitted that he
made the calls to inquire about Rynearson’s military
status and to “inform[]” Rynearson’s superiors of “the
encounter”—not to verify whether Rynearson was a
citizen, which he did through a records check and the
review of Rynearson’s passport. See R. 266; R. 279.
not extend the duration of the stop.” United States v. MachucaBarrera, 261 F.3d 425, 432 (5th Cir. 2001). But, as the district
court held, the Fifth Circuit applies that rule only to questions
that “extend the duration of the stop” because they are asked
after the inquiry into citizenship is complete. See supra at 8;
App. 41a; United States v. Portillo-Aguirre, 311 F.3d 647, 654
(5th Cir. 2002) (“Conversely, when officers detain travelers after
the legitimate justification for a stop has ended, the continued
detention is unreasonable.”).
This interpretation of Fifth
Circuit law was cemented as correct when it was affirmed by
the panel’s decision in this case and left undisturbed by the en
banc court.

19
Finally, it has been clear for over a decade that,
in conducting any kind of detention short of arrest—
but especially where suspicionless immigration
detentions are concerned—“an officer always has to
be reasonably diligent” in his investigation,
Rodriguez, 135 S. Ct. at 1616 (internal quotation
marks omitted), and must “diligently pursue[] a
means of investigation that [is] likely to confirm or
dispel [his] suspicions quickly.” United States v.
Sharpe, 470 U.S. 675, 686 (1985). As this Court held
in Sharpe, this universal obligation of diligence
persists even if a detainee’s actions contribute to the
length of the detention.
Sharpe concerned the
reasonableness of a 20-minute Terry stop in which
the “delay” in completing the stop “was attributable
almost entirely” to the suspect’s actions attempting
to evade the officers. Id. at 687-88. The Court held
that the duration of a stop will not be considered
“unreasonable when the police have acted diligently
and a suspect’s actions contribute to the added
delay.” Id. at 688 (emphasis added). This dual
requirement makes plain that when an officer does
not act diligently, delays not attributable to the
detainee will render the detention unreasonable.
The Fifth Circuit, in contrast, disregarded this
rule and exempted the agents from any duty of
diligence based on its finding that Rynearson
engaged in “unorthodox tactics” and was “unusually
uncooperative.”
App. 8a.
These findings are
certainly debatable—the majority labeled him
“uncooperative” simply because he did not exit the
car (even when he was not ordered to do so); kept the
window rolled up during part of the detention
(although he was able to freely converse with the

20
agents); and “asserted his right against unlawful
searches and seizures” (which was his constitutional
prerogative). Id. at 2a-3a, 8a. Throughout the
encounter, Rynearson promptly provided the agents
with all of the information they needed to perform
the “programmatic purpose” of the detention—to
verify his immigration status. Edmond, 531 U.S. at
46.
More importantly, however, as Judge Elrod
pointed out on dissent, none of this alleged
“uncooperative” or “unorthodox” behavior can justify
the 23-minute extension of the detention after
Rynearson affirmed his citizenship (when first asked)
and offered his passports. Nor can it excuse the final
17 minutes after Agent Perez finally took
Rynearson’s passports.
App. 16a (Elrod, J.,
dissenting). By either of these points, the agents had
all of the information they needed to verify his U.S.
citizenship. No action by Rynearson can be said to
have contributed anything to this portion of the
detention; the delay was instead due to the agents’
dilatory actions, including Agent Perez’s unrelated
calls to Rynearson’s employer.
The Fifth Circuit’s holding that Rynearson’s
conduct excused an excessive delay that he had no
part in causing violates Sharpe’s command that
officers must remain diligent even when faced with
conduct of a detainee that causes delay.
Because the Fifth Circuit’s decision transgresses
each of three fundamental limitations upon the scope
of suspicionless seizures—brevity, purpose, and
reasonable diligence—review is warranted to bring

21
the Fifth Circuit’s law in line with this Court’s
precedents.
B. The Fifth Circuit’s Rule Permitting
Extended
Detentions
To
Pursue
Unrelated Inquiries If A Detainee’s
Behavior Is “Unorthodox” Creates A
Multi-Layered Circuit Conflict.
Besides transgressing this Court’s precedent,
the Fifth Circuit’s decision reveals an intractable,
multi-layered conflict between its law and the clearly
established law of other circuits. First, the Fifth
Circuit departed from the Ninth and Tenth
Circuits—the other two circuits in which the majority
of fixed border patrol checkpoints operate—with its
holding that agents may pursue inquiries unrelated
to immigration status during an immigration
checkpoint detention, absent any suspicion of
criminal wrongdoing. It compounded the conflict by
making the sequence of events determinative of the
permissibility of these unrelated pursuits. And the
Fifth Circuit opened up another divide of authority
by using a detainee’s conduct to justify an extended
detention that the detainee himself played no role in
causing.
1.

The Fifth Circuit rule permitting
extended detentions for unrelated
inquiries without individualized
suspicion diverges from Ninth and
Tenth Circuit law.

The Fifth, Ninth, and Tenth circuits agree that
once an interior immigration checkpoint detention
exceeds the permissible immigration inquiry,

22
continued detention can only be justified if the agents
have developed at least a reasonable suspicion of
criminal activity. See, e.g., Machuca-Barrera, 261
F.3d at 434 (“[I]f the initial, routine questioning
generates reasonable suspicion of other criminal
activity, the stop may be lengthened to accommodate
its new justification.”); United States v. Massie, 65
F.3d 843, 848 (10th Cir. 1995) (“Further detention of
an individual beyond the scope of a routine
checkpoint stop must be based upon reasonable
suspicion, consent, or probable cause.”); United States
v. Taylor, 934 F.2d 218, 220 (9th Cir. 1991). This
apparent agreement masks irreconcilable differences
among the circuits on the rules for determining when
a detention exceeds its permissible immigration
purpose.
a. The circuits divide first on whether agents
may prolong an immigration detention to investigate
matters outside a traveler’s immigration status
without any individualized suspicion.
Both the Ninth and Tenth Circuits logically
recognize that it is not possible to ensure that an
immigration checkpoint detention is properly limited
to the “time needed to handle the matter for which
the stop was made,” Rodriguez, 135 S. Ct. at 1612,
and is not impermissibly lengthened by “unrelated
investigations,” id. at 1614, without policing the
scope of the investigation that agents can undertake
during these suspicionless detentions.
The Tenth Circuit permits agents to “briefly
question individuals” only on certain limited matters:
“‘vehicle ownership, cargo, destination, and travel
plans.’” Massie, 65 F.3d at 848 (quoting United States

23
v. Rascon–Ortiz, 994 F.2d 749, 752 (10th Cir. 1993)).
Even then, questioning on these matters is permitted
only “as long as such questions are ‘reasonably
related to the agent’s duty to prevent the
unauthorized entry of individuals into this country
and to prevent the smuggling of contraband.’” Id.
In the Ninth Circuit, the inquiry during an
immigration checkpoint detention is even more
confined. Such a detention is only reasonable if “the
scope of the detention remains confined to a few brief
questions, the possible production of a document
indicating the detainee’s lawful presence in the
United States, and a visual inspection of the vehicle
*** limited to what can be seen without a search.”
Taylor, 934 F.2d at 220 (internal quotation marks
omitted; ellipsis in original).
Beyond these strict limits, both circuits permit
further investigation only when the initial
investigation reveals information that gives the
agents some minimal suspicion that the traveler is
engaged in criminal activity. See Massie, 65 F.3d at
848
(“[I]f
an
agent
observes
‘suspicious
circumstances’ during initial questioning, he ‘may
briefly question the motorist concerning those
suspicions and ask the motorist to explain.’”) (quoting
Rascon-Ortiz, 994 F.2d at 753); Taylor, 934 F.2d at
221 (“[W]e hold that the brief further detention
conducted by the government in this case must be
predicated on an articulable suspicion or ‘a minimal
showing of suspicion’ of criminal activity.”) (citation
omitted).
The Fifth Circuit, in contrast, permits agents to
undertake inquiries that are plainly not related to

24
any special duties of the Border Patrol with respect
to immigration, including calling an employer to
report an encounter. The Fifth Circuit held that the
agents’ actions were not clearly unreasonable even
when the detention was measurably lengthened for
an investigation that ranged far afield from any
inquiry into authorization to be in the country. App.
7a. Further, the Government conceded, and the
panel unanimously held, that this wide-ranging
investigation was conducted in the absence of any
reasonable suspicion that Rynearson had committed
a crime. Id. (majority opinion); id. at 16a n.7 (Elrod,
J., dissenting).
The majority’s approval of this
extended investigative frolic is based on the circuit’s
hands-off approach to evaluating agents’ immigration
investigations.
Because Fifth Circuit precedent
deems it necessary for officers to “have leeway in
formulating questions to determine citizenship
status,” courts in the circuit are not permitted to
“scrutinize the particular questions a Border Patrol
agent chooses to ask.” Machuca-Barrera, 261 F.3d at
433. This hands-off approach ultimately means that,
unlike in the Ninth and Tenth Circuits, there are no
enforceable limits on the investigation that can be
undertaken prior to the completion of an immigration
checkpoint detention.
b. These divergent
scope of an immigration
an additional conflict:
events in a detention
reasonableness.

approaches to policing the
checkpoint detention yield
whether the sequence of
is determinative of its

In the Fifth Circuit, sequencing is critical.
Under its precedent, a detention cannot be continued

25
after an agent eventually completes the immigration
inquiry, Portillo-Aguirre, 311 F.3d at 654, meaning
that an agent may not prolong the detention by
asking questions outside the scope of the stop once
the traveler’s immigration status has been verified.
But the Fifth Circuit’s deferential approach to review
of agents’ investigative choices outlined in MachucaBarrera, see supra at 24, leaves agents free to pursue
even unrelated inquiries that appreciably lengthen
the detention, so long as those inquiries occur before
the agent determines citizenship. As the district
court recognized, App. 41a, the practical import of
the Fifth Circuit’s rule is that suspicionless
immigration checkpoint detentions can only be
“impermissibly
lengthen[ed]”
by
“continued
questioning after the confirmation of citizenship” not
questioning that occurs before, id., creating perverse
incentives for agents to delay the one inquiry
permitted under this Court’s precedent.
The Ninth and Tenth Circuits, on the other
hand, have long held that sequencing is immaterial;
only overall duration is critical. Those courts of
appeals permit detentions to continue for certain
routine inquiries even after citizenship is confirmed.
See, e.g., Massie, 65 F.3d at 845 (permitting further
detention after an agent “verif[ied] Defendants were
United States citizens”); Taylor, 934 F.2d at 219
(permitting further detention after an agent’s
“immigration inspection was completed”). Yet these
circuits, unlike the Fifth Circuit, require that the
overall duration of the detention, regardless of
sequence of events during the detention, be
markedly, and objectively, brief.

26
c. These conflicts result in widely different
limits upon routine checkpoint seizures from one
State to the next. This cannot continue. Uniformity
is critical for all travelers, who should not have their
Fourth Amendment rights depend upon the vagaries
of circuit boundaries. Uniformity will also benefit the
Border Patrol, because subjecting the entire system
of interior border checkpoints to a single set of rules
will make administration simpler, and therefore
more effective, than the current constitutional
patchwork.
This difference in law of the circuits is also
outcome determinative of this case.
One may
question whether the Ninth and Tenth Circuit’s
doctrine—permitting an additional investigation once
the immigration inquiry described in Martinez-Fuerte
is completed, on some minimal suspicion less than
reasonable suspicion—comports with the clearly
established law of this Court. But at least in these
circuits, unlike the Fifth Circuit, the scope of the
suspicionless inquiry is cabined to ensure that it is
not unduly prolonged by unrelated questioning.
Moreover, the Ninth and Tenth Circuits would
demand some level of suspicion before Agents Lands
and Perez would have been permitted to pursue
wholly unrelated inquiries, while the Fifth Circuit
demands only that they withheld the determination
of citizenship until their unrelated phone calls were
complete. Even these modest improvements would
have
prohibited
the
agents’
unrestrained
investigative romp in this case. Review is thus
warranted to resolve the fundamental divergence
between the law of the Fifth Circuit and that of the

27
Ninth and Tenth Circuits on the permissible scope
and duration of a suspicionless immigration inquiry.
2.

The Fifth Circuit split from other
circuits by holding that no clearly
established law prohibits officers
from prolonging a detention based
on detainee conduct that did not
contribute to the complained-of
delay.

In justifying its holding that Agents Lands and
Perez could permissibly prolong the detention for
unrelated inquiries, the Fifth Circuit held that
Rynearson’s “unorthodox tactics” and assertion of
“his right against unlawful searches and seizures”
caused the detention—even in its final 23 minutes—
to not violate clearly established law.
By announcing that justification, the Fifth
Circuit broke from a consistent line of cases
reinforcing Sharpe’s holding that an officer’s duty of
diligence cannot be excused by an uncooperative
detainee.
The Third and Ninth Circuits have
recognized as clearly established that even if a
detainee’s conduct contributes to the length of a
detention short of arrest, further detention that was
neither caused by the detainee’s actions nor the
result of a reasonably diligent investigation would be
prohibited. A third court of appeals, the Eighth
Circuit, has held that such an extended detention
violates the Constitution, although it held that this
rule was not clearly established in 2002. The Fifth
Circuit’s unorthodox-conduct-excuses-all rule is in
diametric opposition to the law in these courts of
appeals.

28
In direct conflict with the Fifth Circuit’s decision
here, the Ninth Circuit has held that even if a
detainee is initially uncooperative or evasive, it is
clearly established that detentions of unreasonable
duration are not excused when the extended
detention is not caused by any action of the detainee.
In Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011),
the Ninth Circuit affirmed the denial of qualified
immunity in a case challenging a traffic stop that
lasted for 45 minutes. In that case, an individual
who was stopped for unlawfully tinted windows
failed to pull over on the road, and instead engaged
in “evasive action” by “pulling over into a darkened
parking lot behind a building and turning off his car’s
lights.” Id. at 1081. The detainee was also “verbally
confrontational,” and contended that he had been
stopped for no reason and was being unlawfully
detained. Id. at 1068-69.
The Ninth Circuit held that the detainee’s
behavior in pulling into the darkened parking lot
“certainly played a part in prolonging his detention.”
Id. at 1081. “But even taking into account the
inevitable investigatory delay caused by that
behavior, the length of Plaintiff’s detention was still
unreasonable,” because after the first five minutes of
the detention, the officers “were not diligently
pursuing a means of investigation that was likely to
confirm or dispel their suspicions quickly,” as
required by Sharpe. Id. at 1081. The Ninth Circuit
held that the “prolonged detention was not for a valid
investigatory purpose” because, after the first five to
ten minutes of the stop, the officers “were not waiting
for investigatory checks to be run or asking Plaintiff
questions that would confirm or dispel their

29
suspicions quickly (or at all).” Id. Rather, they were
prolonging the “detention merely to engage in an
exaggerated display[] of authority,” which is
“unreasonable and unconstitutional.” Id. (internal
quotation marks omitted; alteration in original).4
In Karnes v. Skrutski, 62 F.3d 485 (3d Cir.
1995), the Third Circuit likewise held that clearly
established law prohibits officers from prolonging a
detention beyond any delay that was actually caused
by a detainee’s conduct. In Karnes, the Third Circuit
reversed a district court’s grant of qualified
immunity in a case challenging the duration of an
investigatory automobile stop. Id. at 495-97. The
court rejected the government’s argument that the
length of the detention was reasonable because it
“was due to [the detainee’s] argumentative
questioning of their procedures.” Id. at 489. The
Third Circuit held that the mere fact that the suspect
became “argumentative and difficult,” and refused to
consent to searches of his luggage and car, could not
make the duration of his detention reasonable, given
that the delay was “the result primarily of the
[officers’] dilatory pursuit of their investigation,”
including their repeated attempts to “cajole [the
detainee] into granting them consent” to search his

Similarly, the Ninth Circuit overturned the conviction of a
suspect who initially evaded arrest because the “prolonged and
subsequent detention at the Sheriff’s office which followed”
could not be justified. United States v. Jennings, 468 F.2d 111,
115 (9th Cir. 1972).
The suspect “identified himself
satisfactorily, answered questions about himself and his
activities *** [and] allowed himself to be patted down.” Id.
4

30
vehicle, and was not actually based on the plaintiff’s
questioning. Id. at 496-97.
Finally, in Seymour v. City of Des Moines, 519
F.3d 790 (8th Cir. 2008), the Eighth Circuit held that
a detention was unreasonable when a father was
held during the investigation into the death of his
infant son until an investigating officer could arrive
on the scene. Id. at 792. The Court rejected the
government’s argument that the duration of the
detention was reasonable when “some of the
detention’s duration is attributable to [the father]
himself” because he “spent some time deciding who
should care for his children” before departing for the
hospital to meet the investigating officer. Id. at 797
n.5 (emphasis added). The Court contrasted the case
to the facts of Sharpe, saying that, unlike the delay
in Sharpe, which “‘was attributable almost entirely
to’ one of the defendants,” the father’s “indecision
regarding who would stay behind appears to have
been brief.” Id. The Eighth Circuit nevertheless held
that this law was not clearly established in 2002, id.
at 798, when the detention took place. In any event,
it certainly became clearly established upon the 2008
release of the Seymour opinion, two years before
Rynearson’s detention.5
These teachings are clear. A detainee’s conduct
during
detention
cannot
serve
to
excuse
A rule can be clearly established for qualified immunity
purposes even if there is no “case[] of controlling authority in
the[] jurisdiction,” when there is a “consensus of cases of
persuasive authority.” Wilson v. Layne, 526 U.S. 603, 617
(1999).
5

31
unreasonable delays, i.e., delays that are not caused
by the detainee’s behavior or that are based on
unrelated inquiries outside the permissible scope of
the stop. And even if a detainee contributes to some
part of a prolonged detention, courts must separately
scrutinize whether any subsequent portion of the
detention that cannot be laid at the detainee’s feet is
justified by reasonably diligent investigation of the
stop’s purpose. These cases stood for years as clearly
established law since this Court’s decision in Sharpe,
until the Fifth Circuit’s decision in this case created a
conflict.
Like the Fifth Circuit’s departure from the
limits imposed on suspicionless checkpoints in the
Ninth and Tenth Circuits, this conflict is outcome
determinative. Had Rynearson’s case arisen in the
Third, Eighth, or Ninth circuits, the court would have
been forced to consider, at a minimum, whether the
23 minutes of Rynearson’s detention after he offered
his passports was actually caused by Rynearson as
opposed to the agents’ lack of diligence.
This
question can only be answered in Rynearson’s favor.
In any event, the Fifth Circuit departed from its
sister circuits in rejecting the clearly established rule
that delays a detainee had no part in creating are not
rendered reasonable simply because the detainee
asserted his rights or was “uncooperative” in some
earlier part of the detention.
C. The Proper Scope Of An Immigration
Checkpoint Seizure Is An Exceptionally
Important Question.
The “principal protection of Fourth Amendment
rights at checkpoints lies in appropriate limitations

32
on the scope of the stop,” Martinez-Fuerte, 428 U.S.
at 566-567. The question presented here concerns
those limitations and is of exceptional importance to
the more than one hundred million travelers who are
seized without any individual suspicion at internal
border patrol checkpoints each year.
1. The Border Patrol operates more than 70
fixed checkpoints across California, Arizona, New
Mexico, and Texas alone. See Gov’t Accountability
Office, Report No. 09-824, at 8, 10 (Aug. 2009)
(reporting that in fiscal year 2008, the Border Patrol
operated 32 permanent checkpoints in the Southwest
on a near-continuous basis plus an additional 39
tactical checkpoints).
At just six of those
checkpoints, including the two busiest, the Border
Patrol stops about 111.2 million vehicles a year.
Gov’t Accountability Office, Report No. 05-435, at 3537, 66, 68, 73, 80 (reporting daily traffic in 2004 at
six of the Border Patrol’s permanent checkpoints in
the Southwest). Nor are the Border Patrol’s internal
checkpoints limited to the Southwest; fixed
checkpoints also operate in states along the
Canadian border. See, e.g., New York v. White, 796
N.Y.S.2d 902 (N.Y. Sup. Ct. 2005) (suppressing
evidence where defendant was detained at a Border
Patrol interior checkpoint in New York for 50
minutes).
Travelers
are
increasingly
encountering
checkpoint detentions that exceed the brief, limited
questioning envisioned in Martinez-Fuerte. See, e.g.,
Am. Civil Liberties Union of Ariz., Complaint and
Request for Investigation, at 2 (Jan. 15, 2014) (noting
that “border residents regularly experience extended

33
interrogation and detention not related to
establishing citizenship” and reporting incidents in
which “most of the individuals described *** were
never asked about their citizenship”);6 Am. Civil
Liberties Union of N.M., Guilty Until Proven
Innocent: Living In New Mexico’s 100-Mile Zone, at 7
(May 2015) (reporting complaints received from
motorists subjected to “prolonged detentions at
interior checkpoints” involving “aggressive and
unnecessary questioning not pertaining to citizenship
status”).7 The Fifth Circuit’s decision—approving of
suspicionless detentions exceeding 20 minutes after
valid passports were offered, and featuring unrelated
phone calls to a detainee’s employer—will only
exacerbate these problems for the tens of millions of
motorists seized each year at the Border Patrol’s
interior checkpoints in Texas, which contained more
than half of the Border Patrol’s permanent
checkpoints in 2009. See Gov’t Accountability Office,
Report No. 09-824, at 9 (displaying locations of
permanent checkpoints).
The importance of this question is underscored
by Judge Elrod’s sharp and impassioned dissent. Her
careful opinion not only fatally undermines the panel
majority’s logic, but also demonstrates that this is far

Available at http://www.acluaz.org/sites/default/files/
documents/ACLU%20AZ%20Complaint%20re%20CBP%20Chec
kpoints%20%202014%2001%2015_0.pdf.
7
Available
at
https://www.aclu-nm.org/wp-content/
uploads/2015/05/ACLU-NM-GuiltyUntilProvenInnocentFinal515-2015-21.pdf.
6

34
from a routine application of settled law, despite
what its per curiam label might suggest.
2. The Fifth Circuit’s approach leaves vital
Fourth Amendment liberties unprotected for the
millions who are seized at immigration checkpoints
in Texas. The Fifth Circuit permits wide-ranging
questioning on virtually any topic, for periods of time
far exceeding the few minutes reasonably necessary
to determine a traveler’s authorization to be present
within the United States. It allows this questioning
and investigation to continue so long as the traveler’s
immigration status has not actually been verified,
and condones an agent’s stalling in asking the only
question that justifies the detention.
It thus
undermines in practice the strict limits that provide
the only justification for the Border Patrol’s program
of fixed immigration checkpoints, making them in
reality no different than suspicionless detentions
conducted to serve a “general interest in crime
control” that this Court has repeatedly rejected.
Edmond, 531 U.S. at 40.
Furthermore, the Fifth Circuit’s decision makes
a
detention’s
reasonableness
turn
on
the
happenstance of the sequence of events during the
detention—or worse—provides a perverse incentive
to Border Patrol agents to delay the immigration
determination until they have pursued any other
flight of investigative fancy. Agents who wish to
engage in further investigation—whether to troll for
potential criminal activity, or as a pretext to harass a
traveler who exercises his rights—will be able to
extend the scope of their investigation by prolonging
rather than expediting the completion of the

35
immigration inquiry. This encourages delay where
the Constitution requires diligence, and thus
undermines, rather than protects, essential Fourth
Amendment rights.
Finally, the Fifth Circuit’s view that agents are
effectively unlimited in the scope and duration of the
detention so long as they can point to some
“unorthodox tactic” by the detainee upends the
Fourth Amendment’s protections in a dizzying array
of potential law enforcement encounters, even those
outside of immigration checkpoints.
Rather than
focus on the officers’ diligence, the Fifth Circuit
makes the detainee’s response the sine qua non of
reasonableness—even if that response has no bearing
on delays caused by dilatory action by the officers.
That gets the Fourth Amendment inquiry exactly
backwards. The free pass the Fifth Circuit awards
agents to conduct extended detentions even when
detainee conduct has no effect on the agents’ ability
to diligently investigate citizenship status leaves the
Fourth Amendment rights of checkpoint travelers
effectively unprotected. This holding is erroneous
and should be reversed.
II. AT A MINIMUM, THIS CASE SHOULD BE
REMANDED
FOR
FURTHER
CONSIDERATION IN LIGHT OF LAST
TERM’S DECISION IN RODRIGUEZ.
As discussed above, the Fifth Circuit’s departure
from this Court’s precedents and the law of other
circuits warrants plenary review. At the least,
however, this Court should grant, vacate, and
remand this case for further consideration in light of
Rodriguez, which was decided in April 2015, after the

36
Fifth Circuit panel decision issued in February 2015,
and after the request for en banc rehearing was filed.
That decision is an “intervening development[], or
recent development[] that [there is] reason to believe
the court below did not fully consider,” and it reveals
a “reasonable probability that the decision below
rests upon a premise that the lower court would
reject if given the opportunity for further
consideration.” See Lawrence v. Chater, 516 U.S.
163,
167
(1996)
(per
curiam)
(discussing
considerations for granting, vacating, and remanding
a case for further consideration).8
In Rodriguez, this Court considered a traffic
stop that had been lengthened by seven to ten
minutes by the officers’ decision to conduct a dog sniff
after completing the traffic citation. Id. at 1612.
This Court reversed the Eighth Circuit’s holding that
adding seven to ten minutes to the stop was a “de
minimis intrusion on [the detainee’s] personal
liberty.” Id. at 1614 (internal quotation marks
omitted). Instead, this Court reiterated, authority
for a “seizure *** ends when tasks tied to the traffic
infraction are—or reasonably should have been—
completed.” Id.
Most critically here, Rodriguez also reinforced
that the sequence of an investigation is irrelevant;
the only test is whether “unrelated checks” “add[]
time to” the stop. Id. at 1615-16. This ruling reveals
Petitioner submitted a copy of Rodriguez during the
pendency of the en banc petition under FED. R. APP. P. 28(j), but
rehearing was denied just two working days later, suggesting
that the supplemental authority was not “fully considered.”
8

37
the fundamental fallacy of the Fifth Circuit’s (and
district court’s) premise that only unrelated inquiries
pursued after the citizenship inquiry was conducted
should be considered when evaluating whether a
detention was unlawfully prolonged. There is strong
reason to believe the Fifth Circuit would reach a
different result upon full consideration of Rodriguez.
Although Rodriguez was decided after the
seizure in question, it is still potentially
determinative here, see Lawrence, 516 U.S. at 167,
because it merely “reiterate[d]” what this Court “said
in Caballes” regarding the permissible scope of a
seizure based on less than probable cause, 135 S. Ct.
at 1616, and Caballes was decided years before
Rynearson’s detention and thus reflected the clearly
established law at that time. Moreover, it is plain
under both this Court’s precedent and the Fifth
Circuit’s that analysis of the permissible scope of a
stop in Terry and traffic cases applies with equal or
greater force in internal immigration checkpoint
cases. See Martinez-Fuerte, 428 U.S. at 567 (citing
Terry as the source for “appropriate limitations on
the scope of the stop”); United States v. Ellis, 330
F.3d 677, 679 (5th Cir. 2003) (noting the Fifth Circuit
has “delineated the bounds of immigration stops by
applying *** jurisprudence regarding stops based on
reasonable suspicion”).9
The majority rejected the relevance of Terry stop cases, but
only on the question whether an individual could be compelled
to answer questions or produce identification at an immigration
checkpoint. App. 6a-7a. That part of the Fifth Circuit’s holding
is not before the Court because the question presented
9

38
In sum, there is a reasonable probability that
the decision below rests on a premise that the lower
court would reject if asked to fully consider
Rodriguez, and a grant, vacate, and remand order is
appropriate.
*****
The net effect of the Fifth Circuit’s decision is
quite remarkable. It permits the Border Patrol to
conduct suspicionless seizures free of the constraints
that obtain even for suspicion-based seizures—to
hold someone more than 30 minutes for purportedly
brief questioning, while spending most of the time
pursuing unrelated inquiries and calling an
individual’s employer. Most troublingly, the Fifth
Circuit allows agents to unreasonably extend a
detention because an individual asserted his rights—
all without even the barest minimum of individual
suspicion at any time during the encounter. Review
is warranted to bring the Fifth Circuit’s law
governing immigration checkpoint seizures in line
with the precedent of other courts of appeals and of
this Court.

addresses only the last 23 minutes of the detention. See supra
at i, 11.

39
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Ruthanne M. Deutsch
Washington, DC

J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, TX 75206
(469) 600-9455
ccecere@cecerepc.com

Counsel for Petitioner
August 3, 2015

APPENDIX TO THE PETITION FOR A WRIT
OF CERTIORARI
TABLE OF CONTENTS
Opinion of the United States Court of Appeals
for the Fifth Circuit (February 26, 2015) ................. 1a
Opinion and Order of the United States
District Court for the Western District of Texas
(September 30, 2013) ............................................... 19a
Report and Recommendation of the Magistrate
Judge for the United States District Court for
the Western District of Texas (June 27, 2013) ....... 50a
Order of the United States Court of Appeals for
the Fifth Circuit Denying Petition for
Rehearing En Banc (May 4, 2015) .......................... 90a
Plaintiff’s Fact Appendix (Excerpt) (October 15,
2012) ......................................................................... 92a

1a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________
No. 13-51114
____________
RICHARD RYNEARSON,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA; AGENT LANDS,
Border Patrol Agent, Individually; RAUL PEREZ,
Border Patrol Agent, Individually,
Defendants – Appellees
_____________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2-12-CV-24
_____________________________________
Before

REAVLEY, ELROD,
Circuit Judges.

and

SOUTHWICK,

PER CURIAM:*

Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
*

2a
Richard Rynearson brought this Bivens action
against two border patrol agents in their individual
capacities. He alleged they violated his Fourth
Amendment rights by unlawfully detaining him. The
district court granted summary judgment for the
agents after concluding that they were entitled to
qualified immunity. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Rynearson, a major in the United States Air
Force, was stopped at a fixed interior immigration
checkpoint in Uvalde County, Texas approximately
67 miles from the United States-Mexico border in
March 2010. He alleges that he has had several
unpleasant experiences in prior stops at the
checkpoint. Consequently, he was prepared with
numerous cameras in his vehicle to record this stop.
The following facts come from the pleadings and a
video Rynearson recorded during the stop and posted
on at least two websites. The defendants included
the video as an exhibit in their Motion to Dismiss.
When Rynearson entered the checkpoint he was
asked if he owned his vehicle. Upon saying he did, he
was asked to move to the secondary inspection area.
He was not asked about his citizenship at any point
during the initial stop. Rynearson kept his window
almost
completely
closed
throughout
all
communications with the officers despite being
repeatedly asked to open it further or step out of the
vehicle. Rynearson was held in his vehicle in the

except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

3a
secondary inspection area for a little over a minute
before he was asked to display his identification.
Inside the car, he stuck his driver’s license and
military identification between the window glass and
the door’s weather stripping, where they could be
read from the outside of the vehicle.
Upon seeing Rynearson’s military identification,
Agent Lands asked him where he was stationed. The
agent then asked him to step out of the car.
Rynearson refused and demanded to be told why he
was being detained. Agent Lands explained that he
needed to determine Rynearson’s citizenship and
that he would be free to go afterwards, but
Rynearson still refused to step out of the car or roll
down his window. Rynearson insisted that he would
not get out unless Lands explained his reasonable
suspicions for detaining him.
This discussion
continued for about eight minutes before Agent
Lands said he was going to find a supervisor.
Rynearson then added his passports to the display of
documents on his window.
After Rynearson had waited 18 minutes at the
checkpoint, Supervisory Border Patrol Agent Perez
arrived. Rynearson explained to Agent Perez that
the agents had not allowed him to leave despite the
fact that he had offered his identification and told
them that he was a citizen. Rynearson still refused
to roll down his window or exit the vehicle. Agent
Perez asked for Rynearson’s passports and for the
name of Rynearson’s commanding officer. Rynearson
refused to give the name and complained that Agent
Perez was trying to interfere with his employment.
Agent Perez then took Rynearson’s passports into the
checkpoint station and returned 13 minutes later to

4a
inform Rynearson that he was free to go. He
explained that if Rynearson would be more
cooperative in the future by rolling down his window
to help agents hear over the traffic and by physically
producing immigration documents for validation, the
checkpoint procedure would be quicker. Rynearson’s
total time at the checkpoint was approximately 34
minutes.
Rynearson submitted an administrative claim to
United States Customs and Border Protection
pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2671 et seq., seeking $500,000 in
damages as a result of the stop. His claim was
denied. He then filed this suit in the United States
District Court for the Western District of Texas. His
FTCA claims were based on negligence, false arrest
and imprisonment, intentional infliction of emotional
distress, and violation of rights under the Fourth,
Fifth, Sixth, and Fourteenth Amendments. His
complaint also included Bivens claims against Agents
Lands and Perez for violation of his Fourth
Amendment rights. See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). Only the Bivens Fourth Amendment
claims are before this court.
All others were
dismissed and no appeal was taken.
The district court concluded that Agents Lands
and Perez were entitled to qualified immunity
because Rynearson failed to demonstrate a violation
of his Fourth Amendment rights in either the
manner of conduct at the stop or the duration of the
stop. The court also found that the agents had
reasonable suspicion to detain Rynearson. Finally,

5a
the district court denied Rynearson’s motion to stay
summary judgment pending discovery.
DISCUSSION
We review de novo a district court’s grant of
summary judgment on the basis of qualified
immunity. Freeman v. Gore, 483 F.3d 404, 410 (5th
Cir. 2007). “The doctrine of qualified immunity
protects governmental 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.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). The plaintiff has the burden of refuting a
properly raised qualified immunity defense “by
establishing that the official’s allegedly wrongful
conduct violated clearly established law.” Brumfield
v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)
(quotations and citation omitted).
“Qualified
immunity gives government officials breathing room
to make reasonable but mistaken judgments and
protects all but the plainly incompetent or those who
knowingly violate the law.” Stanton v. Sims, 134 S.
Ct. 3, 5 (2013) (quotations and citations omitted).
We conduct a two-step analysis to determine
whether an agent is entitled to qualified immunity.
See Saucier v. Katz, 533 U.S. 194 (2001). The usual
approach is to determine, first, “whether, viewing the
summary judgment evidence in the light most
favorable to the plaintiff, the defendant violated the
plaintiff's constitutional rights.” Freeman, 438 F.3d
at 410.
If such a violation occurred, we then
“consider whether the defendant’s actions were
objectively unreasonable in light of clearly

6a
established law at the time of the conduct in
question.” Id. at 411. For a right to be clearly
established, “existing precedent must have placed the
statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).
Although the existence of the right is often
considered first, it is permissible to begin with the
determination of whether the claimed right was
clearly established: “the judges of the district courts
and the courts of appeals are in the best position to
determine the order of decisionmaking that will best
facilitate the fair and efficient disposition of each
case.” Pearson, 555 U.S. at 242.
A routine interior immigration checkpoint stop
conducted without reasonable suspicion does not
violate the Fourth Amendment. United States v.
Martinez-Fuerte, 428 U.S. 543, 561-62 (1976). Border
patrol agents at interior checkpoints may stop a
vehicle, refer it to a secondary inspection area,
request production of documents from the vehicle’s
occupants, and question the occupants about their
citizenship. Id. at 562-63. The purpose of the stop is
limited to ascertaining the occupants’ citizenship
status. United States v. Machuca-Barrera, 261 F.3d
425, 433 (5th Cir. 2001). “The permissible duration
of an immigrant checkpoint stop is therefore the time
reasonably necessary to determine the citizenship
status of the persons stopped.” Id. “Conversely,
when officers detain travelers after the legitimate
justification for a stop has ended, the continued
detention is unreasonable.” United States v. PortilloAguirre, 311 F.3d 647, 654 (5th Cir. 2002).
Rynearson argues the agents violated his Fourth
Amendment rights by being “intentionally dilatory”

7a
in waiting too long to ask about his citizenship,
intentionally extending the duration of his
detainment, and calling his military base to inquire
into his military status. He argues that he had a
right to refuse to cooperate because the Fourth
Amendment “does not impose obligations on the
citizen” to cooperate. See Hiibel v. Sixth Judicial
Dist. Ct. of Nev., 542 U.S. 177, 187 (2004).
Rynearson relies on precedent discussing the
Supreme Court’s analysis in Terry v. Ohio, 392 U.S. 1
(1968). Terry allows a law enforcement officer to
detain a person for a brief investigation if the officer
can identify specific and articulable facts leading to a
reasonable suspicion that the person is committing or
about to commit a crime. United States v. Hill, 752
F.3d 1029, 1033 (5th Cir. 2014). In contrast, the
Supreme Court has granted agents at immigration
checkpoints the right to stop and question a vehicle’s
occupants regarding their citizenship without
reasonable suspicion of any wrongdoing. MachucaBarrera, 261 F.3d at 433. That grant of authority is
readily distinguishable from the authority granted by
Terry.
There is no dispute that the initial stop was
constitutional. Neither Rynearson nor his car was
searched. Because the Supreme Court has granted
agents the authority to stop, question, and inspect
documents at interior checkpoints, the government
argues there must also be a requirement that the
individual cooperate with the agents. The Supreme
Court has concluded that “all 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.”

8a
United States v. Brignoni-Ponce, 422 U.S. 873, 880
(1975) (quotations and citation omitted).
The facts indicate that Rynearson generally
asserted his right against unlawful searches and
seizures while the agents had difficulty determining
how to respond to his unorthodox tactics. We have
not discovered nor been shown any authority
supporting Rynearson’s claim that the constitutional
rights he chose to stand on were clearly established.
Accordingly, we conclude that these governmental
officials, at worst, made reasonable but mistaken
judgments when presented with an unusually
uncooperative person, unusual at least in the facts
described in any of the caselaw.
Because we hold that no constitutional right of
which all reasonable officers would have known was
violated, we need not consider whether Rynearson
actually had some limited Fourth Amendment right
to refuse to cooperate. See Pearson, 555 U.S. at 242.
We close by examining Rynearson’s argument
that the district court erred by denying his motion to
stay summary judgment pending limited discovery.
“We review a decision to stay discovery pending
resolution of a dispositive motion for an abuse of
discretion.” Brazos Valley Coal. for Life, Inc. v. City
of Bryan, Tex., 421 F.3d 314, 327 (5th Cir. 2005). We
find no basis to disturb the district court’s exercise of
discretion. Qualified immunity “is intended to give
government officials a right not merely to avoid
standing trial, but also to avoid the burdens of such
pretrial matters as discovery . . . .” McClendon v.
City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)
(citation and internal quotations omitted). To stay
summary judgment in order to allow discovery, the

9a
court must determine “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). Then,
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 . . . .” Lion Boulos v. Wilson, 834
F.2d 504, 507-08 (5th Cir. 1987). We have already
discussed why the officers were entitled to qualified
immunity in the absence of any clearly established
constitutional right. Discovery was unnecessary.
AFFIRMED.

10a
JENNIFER WALKER ELROD, Circuit Judge,
dissenting:
At a fixed interior immigration checkpoint
approximately sixty-seven miles from the United
States–Mexico border, United States Air Force officer
Richard Rynearson presented four forms of
government-issued identification—including official
and personal U.S. passports—to show that he is a
United States citizen. Yet Agent Lands refused to
examine the passports and Agent Perez, rather than
simply scrutinizing the passports, asked Rynearson
to identify his commanding officer and then made
Rynearson wait while he placed phone calls to
Rynearson’s employer. Because the law is clearly
established that immigration officials violate the
Fourth Amendment when they continue to detain a
traveler beyond the time reasonably necessary to
investigate his citizenship status, I respectfully
dissent.
I.
The majority opinion accurately recites many of
the facts that gave rise to this controversy, but I
write to emphasize a couple of points. First, for the
duration of the stop, Rynearson asserted his rights
while also providing the documentation needed to
prove his citizenship status. The majority opinion
labels these actions “tactics” and calls them
“unorthodox”
and
“unusually
uncooperative.”
However, as the majority opinion recognizes—and a
review of the record and the video confirms1—

As the majority opinion observes, Rynearson posted a
video of the incident on the internet, and the defendants
1

11a
Rynearson began cooperating as early as two
minutes into the stop by producing identification
documents.2
Moreover, while he provided the
information needed to prove his citizenship,
Rynearson explained several times that he would not
indulge the officers’ commands when he thought that
they exceeded the limited scope of the immigration
checkpoint inquiry. Standing on one’s rights is not
an “unorthodox tactic[].” It is a venerable American
tradition.
Second, the record also shows that Agents Lands
and Perez did not expeditiously investigate
Rynearson’s citizenship status. Approximately two
minutes into the stop, Rynearson displayed his
military identification and driver’s license for Agent
Lands, but Agent Lands waited until approximately
eleven minutes into the detention to inform
Rynearson that those identification cards “don’t
mean anything.”
At that point, Rynearson
attached it as an exhibit to their motion to dismiss. The video,
which is divided into four parts and entitled “Full Video –
Border Patrol Incident,” appears at the following links:
Part One: https://www.youtube.com/watch?v=
4BId1f8WG2s
Part Two: https://www.youtube.com/watch?v=
NqU9M9RyeZA
Part Three: https://www.youtube.com/watch?v=
o8GDNFleCI8
Part Four: https://www.youtube.com/watch?v=
mZbCCBH7YM4
Because the parties agree that Rynearson’s video is
accurate, we must “view[] the facts in the light depicted by the
videotape.” Scott v. Harris, 550 U.S. 372, 380–81 (2007).
2

12a
immediately offered to show Agent Lands his official
and personal U.S. passports. Agent Lands ignored
the offer and, for the first time, finally asked
Rynearson whether he was a United States citizen.
Rynearson responded affirmatively, but he was not
then permitted to leave, and Agent Lands never
asked to see Rynearson’s passports.
Almost eighteen minutes into the detention,
Agent Perez arrived and asked for Rynearson’s
passports. Rynearson instantly surrendered them.
Rather than simply examine the passports, however,
Agent Perez asked Rynearson to identify his
commanding officer and attempted to call the Provost
Marshal3 and CID.4 Agent Perez spent ten to fifteen
minutes on these phone calls, and Agent Lands did
not inform Rynearson that he was free to leave until
more than fifteen minutes after Agent Perez took his
passports.5 In total, approximately twenty-three
minutes transpired between the time that Rynearson
offered his passports to Agent Lands and the time

3 The Provost Marshal is the officer in charge of the military
police.

“CID” refers to the U.S. Army Criminal Investigation
Command.
4

5 The majority opinion incorrectly asserts that Agent Perez
was the one who returned the passports to Rynearson and
informed him that he was free to leave. In fact, Agent Lands
(not Agent Perez) was the officer who returned the passports; in
his declaration, Agent Perez averred that he “informed [Agent
Lands] to release Mr. Rynearson and to return Rynearson’s
passports and send him on his way.” ROA. 266. In addition,
the agents’ voices are clearly distinguishable on the videotape,
and Agent Lands is the one speaking when Rynearson receives
his passports and is informed that he may leave.

13a
that the detention ended, for a total detention time of
approximately thirty-four minutes. Although Agent
Perez did scrutinize Rynearson’s passports at some
point during the final portion of the detention, Agent
Lands stated in a declaration that such records
checks generally take a “couple of minutes.”
II.
Agents Lands and Perez argue that, on
summary judgment, they can invoke qualified
immunity to defeat Rynearson’s Bivens action
against them. The test for qualified immunity is a
familiar one. “First, a court must decide whether the
facts . . . alleged . . . make out a violation of a
constitutional right.” Pearson v. Callahan, 555 U.S.
223, 232 (2009). “Second, if the plaintiff has satisfied
this first step, the court must decide whether the
right at issue was ‘clearly established’ at the time of
[the] alleged misconduct.” Id. This second prong of
the qualified immunity analysis asks whether “[t]he
contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is
doing violates [the] right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987). Stated another way, “in
the light of pre-existing law the unlawfulness must
be apparent.” Id. Qualified immunity applies unless
both prongs are satisfied. Pearson, 555 U.S. at 232.
The Supreme Court has made clear that while
the
Fourth
Amendment
permits
routine,
suspicionless stops at fixed checkpoints near the
border, the scope of such stops is “quite limited.”
United States v. Martinez–Fuerte, 428 U.S. 543, 557,
562 (1976). “[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

14a
right to be in the United States.” Id. at 558 (internal
quotation marks omitted). Moreover, this court has
held that “[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.”
United States v. Machuca–Barrera, 261 F.3d 425, 433
(5th Cir. 2001). “It follows that the permissible
duration of an immigration stop is the ‘time
reasonably necessary to determine the citizenship
status of the persons stopped.’” United States v.
Portillo–Aguirre, 311 F.3d 647, 653 (5th Cir. 2002)
(quoting Machuca–Barrera, 261 F.3d at 433).
“An officer may ask questions outside the scope
of the stop, but only so long as such questions do not
extend the duration of the stop.” Machuca–Barrera,
261 F.3d at 432. “Conversely, when officers detain
travelers after the legitimate justification for a stop
has ended, the continued detention is unreasonable.”
Portillo–Aguirre, 311 F.3d at 654. “[A]ny further
detention beyond a brief question or two or a request
for documents evidencing a right to be in the United
States must be based on consent or probable cause,”
Portillo–Aguirre, 311 F.3d at 652, or upon reasonable
suspicion, Machuca–Barrera, 261 F.3d at 434. Even
a three-minute extension beyond a detention’s
permissible duration is cognizable as a Fourth
Amendment violation. See Portillo–Aguirre, 311 F.3d
at 654.
By making Rynearson wait for thirty-four
minutes, ignoring a verbal affirmation of U.S.
citizenship, and rejecting multiple forms of
identification, Agents Lands and Perez far exceeded
the scope of the immigration-checkpoint inquiry as

15a
the Supreme Court defined it in Martinez–Fuerte.
Putting aside the dilatory nature of the stop as a
whole, at a bare minimum, once Rynearson offered
his passports to Agent Lands, any further detention
other than the couple of minutes required to
authenticate the passports was unnecessary. The
State Department may issue passports only to
United States citizens and non-citizen nationals. 22
U.S.C. § 212. As detailed above, Agent Lands refused
to even look at the passports, and Agent Perez did
not simply verify the passports’ authenticity—he
asked for the identity of Rynearson’s commanding
officer and wasted ten to fifteen minutes placing
unnecessary phone calls to military law enforcement.
One cannot escape the impression that Agent
Lands’s refusal to look at the passports and Agent
Perez’s irrelevant phone calls to Rynearson’s
employer operated as retribution against Rynearson
for asserting his rights; about three minutes into the
stop, a fellow officer even pointed out the cameras in
Rynearson’s car. But putting that to one side,6 after
Rynearson offered his passports, Agents Lands and
Perez needed only to examine them to determine
whether Rynearson was a United States citizen.
Therefore, Agents Lands and Perez detained
Rynearson longer than “reasonably necessary to
determine the citizenship status of the person[]

6 Evidence of a defendant’s subjective intentions is not
relevant to the qualified-immunity defense. See Harlow v.
Fitzgerald, 457 U.S. 800, 817–19 (1982); Crawford–El v. Britton,
523 U.S. 574, 588 (1998).

16a
stopped.”7 Machuca–Barrera, 261 F.3d at 433.
In addition, I would hold that at the very least,
Agents Lands and Perez failed to demonstrate
entitlement to qualified immunity with respect to the
twenty-three minutes of detention that followed
Rynearson’s offer to show Agent Lands his passports.
In light of Martinez–Fuerte, Machuca–Barrera, and
Portillo–Aguirre, and on the record as it currently
stands in this case, no reasonable officer would
believe that he could lawfully detain a traveler for
twenty-three minutes after the traveler presents a
valid U.S. passport—better evidence of United States
citizenship than the state-issued forms of
identification that highway travelers most frequently
carry on their person. Far more than simply ask
Rynearson to give the limited information that the
Supreme Court allows officers to demand at fixed
border checkpoints—“a response to a brief question
or two and possibly the production of a document
evidencing a right to be in the United States,”
Martinez–Fuerte, 428 U.S. at 558—Agents Lands and
Perez were dissatisfied with four forms of
government-issued identification and a verbal

7 The length of the detention cannot be justified on the
alternative basis of reasonable suspicion. At oral argument, the
government correctly conceded that “this is not a Terry case.” A
drug dog did not alert when agents led it behind the car. Later,
Rynearson asked Agent Lands several times whether he had
reasonable suspicion to detain him; Agent Lands insisted that
the detention did not require it. When Rynearson asked
whether Agent Lands believed that Rynearson had violated an
immigration law, Agent Lands responded, “I didn’t say you
violated an immigration law.” Indeed, Agent Lands insisted
that he needed no articulable reason at all to detain Rynearson.

17a
affirmation of United States citizenship. All that
remained after Rynearson’s offer to surrender his
passports was to authenticate them. On the present
record, no reasonable officer—in light of Martinez–
Fuerte, Machuca–Barrera, and Portillo–Aguirre—
would believe that he was entitled to take an
additional twenty-three minutes while ignoring the
passports and placing phone calls to Rynearson’s
employer.
III.
Firm assertions of one’s rights are far from
“unorthodox” in a Republic that insists constitutional
rights are worth insisting upon and that tasks the
courts with protecting those rights. See, e.g., Brown
v. Texas, 443 U.S. 47, 52–53 (1979) (holding that
without reasonable suspicion, police may not require
citizens to stop and identify themselves); Kolender v.
Lawson, 461 U.S. 352, 353–54 (1983) (invalidating a
stop-and-identify statute on vagueness grounds).
Government officials, like the defendants in this case,
often contend that “[f]ailure to conform is
‘insubordination,’” W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 629 (1943), but it is the courts
that must draw the line “between authority and
rights of the individual,” id. at 630. In drawing this
line, we do not rely upon “whether . . . we would
think” complying with an official’s commands “to be
good, bad or merely innocuous.” Id. at 634. “Nor
does our duty to apply the Bill of Rights to assertions
of official authority depend upon our possession of
marked competence in the field where the invasion of
rights occurs.” Id. at 639. Rather, “we act in these
matters not by authority of our competence” or by our
perception of the plaintiff’s actions, “but by force of

18a
our commissions.” Id. at 640.
Agents Lands and Perez failed to demonstrate
their entitlement to qualified immunity because the
law is clearly established that immigration officials
may not detain travelers longer than reasonably
necessary to investigate their citizenship status. For
the foregoing reasons, I would reverse the judgment
of the district court and remand for further
proceedings.

19a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION
MAJOR RICHARD
RYNEARSON
Plaintiff,

§
§
§
§
v.
§ Civil Action No.
§ DR-12-CV-24-AM/CW
UNITED STATES
§
OF AMERICA;
§
AGENT LANDS,
§
Border Patrol Agent, §
Individually; and
§
RAUL PEREZ, Border §
Patrol Agent,
§
Individually,
§
Defendants. §
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

20a
judgment that was filed jointly with the Defendants’
motion to dismiss, and DENIES the Plaintiff’s
motion to continue summary judgment in order to
conduct limited discovery for the purposes of
qualified immunity.
I. UNDISPUTED FACTS AND
PROCEDURAL HISTORY1
On March 18, 2010, Plaintiff Richard
Rynearson, a Major in the United States Air Force,
was 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
These facts come from the pleadings, as well as, a video
submitted by the Defendants that Rynearson recorded 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.
1

21a
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
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

22a
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. 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

23a
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 offsite 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

24a
that Rynearson cooperate with agents next time 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

25a
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.2 (ECF No.
29.) In their motion, they state that 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

Counts One, Two, and Three have already been resolved as
to Agent Lands and Agent Perez. On August 3, 2012, the
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 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.)
2

26a
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 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

27a
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
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 violation. These Counts
are discussed infra at pp. 18-20.
3

28a
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

29a
violation may affect other causes of action, this Court
will address this part of Count Four first.
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.

30a
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.” 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)

31a
(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 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))).

32a
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. 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

33a
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 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

34a
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

35a
information available to them that might well elude
an untrained person.” Arvizu, 534 U.S. at 273.
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, 2010.4 Within ten seconds 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

Rynearson does not challenge the constitutionality of a
fixed immigration checkpoint; instead, he challenges the overall
duration of his own detention.
4

36a
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 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).

37a
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 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

38a
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 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

39a
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).
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

40a
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

41a
showing Richard was a military officer 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.

42a
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 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.”

43a
(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 Civil Procedure.5
Accordingly, this Court must only review Judge
White’s findings for clear error. See Wilson, 864 F.2d
at 1221. Upon review of the unobjected-to portions of

Rynearson does not specifically object to the Magistrate
Judge’s recommendation that Count Five (A Bivens 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.
5

44a
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 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

45a
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

46a
constitutional right in furtherance of the conspiracy.
Thompson v. Johnson, 348 F. App’x 914, 920 (5th Cir.
2009) (citing Hale v. Townley, 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 wellpleaded 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)).

47a
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 (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.

48a
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 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

49a
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.
/s/ Alia Moses
ALIA MOSES
UNITED STATES
DISTRICT JUDGE

50a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION
MAJOR RICHARD
RYNEARSON
Plaintiff,

§
§
§
§
v.
§ Civil Action No.
§ 2:12-CV-024-AM-CW
UNITED STATES
§
OF AMERICA;
§
AGENT LANDS,
§
Border Patrol Agent, §
Individually; and
§
RAUL PEREZ, Border §
Patrol Agent,
§
Individually,
§
Defendants. §
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

51a
sufficient showing for the need for limited discovery,
his motion to stay should be DENIED.
I.

UNDISPUTED FACTS AND
PROCEDURAL HISTORY1

On March 18, 2010, Plaintiff Major Richard
Rynearson approached a fixed immigration
checkpoint located on United States Highway 90 in
Uvalde County, Texas, approximately 67 miles 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
The undisputed facts come from the pleadings and a video
submitted by Defendants that Rynearson recorded 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.
1

52a
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 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.

53a
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
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,

54a
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,

55a
Rynearson said he would speak up and that he could
hear Perez just fine.
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

56a
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. 272, 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 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)

57a
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 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

58a
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.2
ECF No. 29. In the combined motion, Lands and
Perez argue that Rynearson is unable 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, and they are therefore
entitled to qualified immunity.3
Rynearson, in

2 Defendant United States of America filed a separate
motion to dismiss based on different arguments. This motion is
addressed in a separate report and recommendation.

Defendant the United States of America previously
certified that Lands and Perez were acting within the course
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
3

59a
response, asks for the 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
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.

60a
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 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

61a
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, 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,

62a
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 combination with
the Fourth Amendment claim in Count Four.

Assuming that a false imprisonment claim can be treated
as a constitutional claim instead of a simple state law 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.
4

5 Since Rynearson already brought a common law tort claim
for false imprisonment that was dismissed as to Lands and
Perez, there is no sense in construing Count Five as another
tort claim.

63a
C.

Fourth Amendment Claims in Count Four
of the Amended Complaint6

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

6 Although not designated as such, Rynearson’s Fourth
Amendment claim in Count Four must be brought 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.

64a
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 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

65a
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 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).

7 This standard comes into play here, where a videotape of
the incident exists.
Similar to Harris, “[t]here are 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).

66a
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, “in the light of
pre-existing law the unlawfulness must be apparent.”
Anderson, 483 U.S. at 640; Manis v. Lawson, 585

8 To invoke qualified immunity, a government official must
show that the conduct occurred while “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) (quoting Garris v. Rowland, 678 F.2d 1264, 1271 (5th
Cir. 1982)). These specifications have been met.

67a
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

68a
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
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-

69a
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
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.

70a
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 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

71a
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.9
The issue, essentially, is
whether Lands and/or Perez unlawfully extended the

Rynearson contends that Defendants failed to even argue
that the second prong of the qualified immunity 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:
9

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.

72a
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 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. RasconOrtiz, 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

73a
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 which they are illequipped 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

74a
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
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

10 Rynearson argues that he could only be ordered out of the
vehicle in the case of a suspicion-based stop. Case 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.

75a
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
therefore had no way to verify Rynearson’s

11 Whether or not it is standard policy to use a dog at the
checkpoint is wholly irrelevant.

76a
citizenship.12 In addition, because of Rynearson’s
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

12 The record also indicates that Lands wrote down
information from the forms of identification that were sitting 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.

77a
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 from
other drivers.13 Keeping his window rolled up,
refusing to exit his vehicle, constantly making 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

13 See, e.g., Brignoni-Ponce, 422 U.S. 899, 913 (1975)
(Burger, J., concurring) (noting the extensive use of 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.”).

78a
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 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

79a
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 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

80a
minutes to await his arrival.14 Similar to here, 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

See also United States v. Franco-Martinez, 2011 WL
4340857, Crim. No. 11-204 (SRN/LIB) (D. Minn. Aug. 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).
14

15 For examples of amounts of time deemed reasonable to
summon a drug dog once reasonable suspicion arises, 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).

81a
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) (“[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

82a
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.
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

16 Neither agent ever refused any offering of a passport.
Placing the passport up against a closed window without
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.

Although Rynearson argues that some of the facts are in
dispute, the undersigned finds that the discrepancies 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
17

83a
D.

Conspiracy, Failure to Intervene,
Supervisory Liability Claims

and

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 conclusory allegations of

that there be no genuine issue of material fact.” Harris, 550
U.S. at 380 (internal quotations and citation omitted).

84a
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

85a
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 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

86a
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 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.

87a
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)).
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.18 Because discovery would be futile,
Rynearson’s motion to stay should be denied.

It is important to note that most of the sought-after
discovery information involves either policy and procedure, or
Defendants’ subjective motivations. Border patrol policies are
18

88a
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.

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).

89a
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.
/s/ Collis White
COLLIS WHITE
UNITED STATES
MAGISTRATE JUDGE

90a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
No. 13-51114
________________
RICHARD RYNEARSON,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA; AGENT LANDS,
Border Patrol Agent, Individually; RAUL PEREZ,
Border Patrol Agent, Individually,
Defendants-Appellees
________________
Appeal from the United States District Court for the
Western District of Texas, Del Rio
________________
ON PETITION FOR REHEARING EN BANC
(Opinion 02/26/15, 5 Cir., ______, ______, F.3d ______)
Before REAVLEY, ELROD, and SOUTHWICK,
Circuit Judges.
PER CURIAM:
 Treating the Petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for
Panel Rehearing is DENIED. No member of the
panel nor judge in regular active service of the
court having requested that the court be polled on
Rehearing En Banc (FED. R. APP. P. and 5TH CIR.
R. 35), the Petition for Rehearing En Banc is
DENIED.

91a
( ) Treating the Petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for
Panel Rehearing is DENIED. The court having
been polled at the request of one of the members
of the court and a majority of the judges who are
in regular active service and not disqualified not
having voted in favor (FED. R. APP. P. and 5TH CIR.
R. 35), the Petition for Rehearing En Banc is
DENIED.
ENTERED FOR THE COURT:
/s/ Leslie H. Southwick
UNITED STATES CIRCUIT JUDGE

92a
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION
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
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 the Plaintiff’s
Response to Defendants’ Motion to Dismiss:
Plaintiff Exhibit A

Declaration of Richard
Rynearson, October 15, 2012

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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 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 Experience With The
Uvalde Checkpoint
3. Because Mr. Rynearson traveled to San
Antonio almost every weekend that he was stationed
at Lauglin 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

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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. 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

95a
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 Agents Lands asked, “Can you roll down your
window? Is 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

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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. 00:35-4:52)
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).

97a
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 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

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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 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 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

99a
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’s 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 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.

100a
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 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

101a
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 though 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 provided were
meaningless, Mr. Rynearson then asked, “Do you

102a
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 with 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

103a
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 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

104a
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
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
me 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).

105a
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 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.” 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

106a
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
regading 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 location,
there was no further interaction between Mr.
Rynearson and the border patrol agents for
approximately another ten minutes. During this

107a
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,

108a
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, 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 identity,” 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’s 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).

109a
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).
*****

NO. 15-168
In the

Supreme Court of the United States
________________

RICHARD RYNEARSON,
PETITIONER,
v.
JUSTIN K. LANDS, BORDER PATROL AGENT, ET AL.,
RESPONDENTS.
________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Fifth Circuit
________________
BRIEF OF THE TEXAS CIVIL RIGHTS
PROJECT AND THE NATIONAL
IMMIGRATION PROJECT OF THE NATIONAL
LAWYERS GUILD AS AMICI CURIAE
IN SUPPORT OF PETITIONER
________________
MERRITT MCALISTER
KING & SPALDING LLP
1180 Peachtree Street, NE
Atlanta, GA 30309
(404) 572-4600
AMY C. EIKEL
KING & SPALDING LLP
1100 Louisiana Street
Suite 4000
Houston, TX 77002
(713) 751-3200

ASHLEY C. PARRISH
Counsel of Record
KING & SPALDING LLP
1700 Pennsylvania Ave., NW
Washington, DC 20006
(202) 737-0500
aparrish@kslaw.com

Counsel for Amici Curiae the Texas Civil Rights Project
and the National Immigration Project
September 8, 2015

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND
SUMMARY OF ARGUMENT .............................. 3
ARGUMENT ................................................................ 6
I.

The Fifth Circuit’s Decision Creates An
Irreconcilable Conflict In Lower Court
Authority............................................................... 6

II. The Fifth Circuit’s Decision Invites Abuse
Whenever
A
Detainee
Engages
in
“Unorthodox Behavior.” ..................................... 10
III. The Question Presented Is Especially
Important And Worthy Of This Court’s
Review. ................................................................ 14
CONCLUSION .......................................................... 18

ii
TABLE OF AUTHORITIES
Cases
Berkemer v. McCarty,
468 U.S. 420 (1984) ...................................... 12, 13
Carachuri-Rosendo v. Holder,
560 U.S. 563 (2010) .............................................. 2
City of Houston v. Hill,
482 U.S. 451 (1987) ...................................... 11, 16
Curley v. Klem,
499 F.3d 199 (3d Cir. 2007) .................................. 7
Florida v. Royer,
460 U.S. 491 (1983) ........................................ 4, 13
Illinois v. Caballes,
543 U.S. 405 (2005) .............................................. 3
Illinois v. Wardlow,
528 U.S. 119 (2000) ............................................ 12
Johnson v. United States,
135 S. Ct. 2551 (2015) ........................................ 11
Karnes v. Skrutski,
62 F.3d 485 (3d Cir. 1995) ................................ 7, 8
Liberal v. Estrada,
632 F.3d 1064 (9th Cir. 2011) .......................... 8, 9
Norwell v. City of Cincinnati,
414 U.S. 14 (1973) .............................................. 11
Padilla v. Kentucky,
559 U.S. 356 (2010) .............................................. 2
Rodriguez v. United States,
135 S. Ct. 1609 (2015) ................................ 4, 6, 13

iii
Terry v. Ohio,
392 U.S. 1 (1968) .................................................. 3
U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) ............................................ 11
United States v. Brignoni-Ponce,
422 U.S. 873 (1975) .............................................. 3
United States v. Martinez-Fuerte,
428 U.S. 543 (1976) .............................................. 3
United States v. Massenburg,
654 F.3d 480 (4th Cir. 2011) .............................. 12
United States v. Sharpe,
470 U.S. 675 (1985) .................................... 6, 7, 13
United States v. Soyland,
3 F.3d 1312 (9th Cir. 1993) ................................ 14
Vartelas v. Holder,
132 S. Ct. 1479 (2012) .......................................... 2
Other Authorities
American Civil Liberties Union of San Diego
& Imperial Counties, California,
U.S. Border Patrol Interior Enforcement
(Nov. 20, 2014) .................................................... 16
Letter of James Lyall, Staff Attorney,
ACLU of Arizona, to U.S. Dep’t of
Homeland Security (Jan. 15, 2014) ................... 15

1
INTEREST OF AMICI CURIAE1
Amicus Texas Civil Rights Project (“TCRP”) is a
non-profit, public-interest legal organization with
3,000 members in Texas. TCRP strives to foster
equality, secure justice, ensure diversity, and
strengthen low- and moderate-income communities
in Texas. It works through education, advocacy, and
litigation to protect individuals’ civil rights and
liberties under the Constitution.
TCRP was founded in 1990 as part of Oficina
Legal del Pueblo Unido, a non-profit communitybased foundation located in South Texas, and now
has offices in Austin, South Texas, El Paso, Houston,
and Midland/Odessa. TCRP has appeared as amicus
curiae or represented individuals in litigation
involving privacy rights, Fourth Amendment rights,
police and border patrol misconduct, and other
border and civil rights-related concerns. Consistent
with its mission, TCRP is especially interested in the
ways in which members of the public are affected by
the operations of the United States Border Patrol.
Amicus National Immigration Project of the
National Lawyers Guild (“NIP”) is a non-profit
membership organization of attorneys, legal workers,
grassroots advocates, and others working to defend
Pursuant to Sup. Ct. R. 37.2(a), counsel for all parties
received notice of amici’s intent to file this brief 10 days before
its due date. All parties have consented to the filing of this
brief. No counsel for any party authored this brief in whole or
in part, and no person or entity, other than amici, their
members, or their counsel, made a monetary contribution
intended to fund the preparation or submission of this brief.
1

2
immigrants’ rights and secure the fair administration
of the immigration and nationality laws. For thirty
years, the NIP has provided legal training to the bar
and the bench on immigration issues. The NIP has
participated as amicus curiae in several significant
immigration-related cases before this Court. See,
e.g., Vartelas v. Holder, 132 S. Ct. 1479 (2012);
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010);
Padilla v. Kentucky, 559 U.S. 356 (2010).
Both TCRP and NIP are concerned about the
Fifth Circuit’s decision, which permits border patrol
agents to conduct lengthy checkpoint detentions to
investigate matters unrelated to immigration status
without reasonable suspicion of any criminal activity.
The justification for this arbitrary intrusion on an
individual’s Fourth Amendment rights appears to be
nothing more than an agent’s view that the detainee
engaged in “unorthodox tactics.” App. 8a. Not only is
the Fifth Circuit’s decision out of step with this
Court’s clear precedent limiting the permissible scope
of suspicionless detentions, it also conflicts with
decisions from other circuits.

3
INTRODUCTION AND
SUMMARY OF ARGUMENT
In United States v. Martinez-Fuerte, this Court
approved internal immigration checkpoints as a
narrow exception to the general rule that law
enforcement officers may not stop someone without
individualized suspicion of wrongdoing. 428 U.S.
543, 545 (1976). Because a checkpoint detention is
for the “sole purpose” of “conducting a routine and
limited inquiry into residence status,” id. at 560, it
should “usually consume[] no more than a minute,”
United States v. Brignoni-Ponce, 422 U.S. 873, 880
(1975) (describing identical parameters for roving
stops), or perhaps up to five minutes for travelers
referred to a secondary inspection area, MartinezFuerte, 428 U.S. at 547.
To ensure that the
“intrusion on Fourth Amendment interests is quite
limited,” id. at 557, the detention may extend only as
long as needed for a “brief question or two and
possibly the production of a document evidencing a
right to be in the United States.” Id. at 558 (internal
quotation marks omitted).
The permissible duration of an immigration
checkpoint stop, like any non-arrest detention, is
therefore measured by its justifying purpose. This
limitation finds its roots in Terry v. Ohio, which held
that a seizure based on less than probable cause
must be “reasonably related in scope to the
circumstances which justified the interference” with
the detainee’s Fourth Amendment rights. 392 U.S. 1,
19–20 (1968); see also Illinois v. Caballes, 543 U.S.
405, 407 (2005) (traffic stop may not be “prolonged
beyond the time reasonably required to complete [its]

4
mission”); Florida v. Royer, 460 U.S. 491, 500 (1983)
(“scope of the detention must be carefully tailored to
its underlying justification”). As the Court recently
reaffirmed, investigatory stops must be limited to no
more than “the time needed to handle the matter for
which the stop was made.” Rodriguez v. United
States, 135 S. Ct. 1609, 1612 (2015).
In this case, petitioner was detained at an
internal immigration checkpoint for an extended
period after he verbally affirmed his citizenship and
offered two valid U.S. passports, even though there
was never any suspicion of wrongdoing or any other
basis for prolonging his detention. In a split decision,
the Fifth Circuit held that the extended detention did
not violate petitioner’s Fourth Amendment rights
because instead of agreeably responding to the stop,
petitioner purportedly engaged in “unorthodox
tactics,” including asserting “his right against
unlawful searches and seizures.” App. 7a–8a. But
the agents never had any reasonable suspicion that
petitioner was in the country illegally or involved in
criminal activity. App. 7a; id. at 16a n.7 (Elrod, J.,
dissenting). And nothing petitioner said or did
during the stop was unlawful or contributed to the
length of his detention after he produced his
passports. App. 15a. Instead, the prolonged delay
was caused by the agents’ failure to limit their stop to
determining
petitioner’s
citizenship
status—
attempting to stir up trouble, they tried to contact his
military base and inquire into his military status,
which they had no right to do.
A checkpoint agent’s duty to determine
immigration status with diligence applies regardless

5
of whether the detainee is as agreeable as the agent
might prefer. And an individual’s decision to invoke
his constitutional rights can never justify an invasion
of those rights. Nor should it lessen or excuse an
agent’s obligation to conduct a diligent stop limited to
the only purpose for which the stop was permitted—
determining the individual’s citizenship status. To
hold otherwise, as the Fifth Circuit did below, opens
a conflict with decisions from other circuits and
establishes a dangerous precedent that exposes
citizens to arbitrary exercises of government power
and threatens to undermine the justification for
permitting suspicionless checkpoint stops in the first
place.
The question presented in this case is important.
Amici are especially concerned about recent reports
of widespread abuses of the carefully tailored limits
that the Constitution imposes on internal
checkpoints, as this Court recognized nearly forty
years ago.
The Court should therefore grant
certiorari to reaffirm the clear rule that, unless there
is reasonable suspicion of wrongdoing, border patrol
agents must limit the scope of any detention in terms
of its duration, purpose, and the reasonable diligence
needed to complete the stop.

6
ARGUMENT
I.

The Fifth Circuit’s Decision Creates An
Irreconcilable Conflict In Lower Court
Authority.

The Fifth Circuit’s decision below cannot be
reconciled with this Court’s clear and long-standing
requirement that an agent exercise reasonable
diligence during any kind of short detention—
especially during a suspicionless immigration stop.
The lower court justified its departure from clearly
established precedent on the theory that petitioner
purportedly engaged in “unorthodox tactics” and “the
agents had difficulty determining how to respond.”
App. 8a. But that approach is not only contrary to
this Court’s precedent, it is also squarely in conflict
with decisions from other courts of appeals.
As the Court explained earlier this year, in a
case involving a traffic stop made with probable
cause, “an officer always has to be reasonably
diligent” in his investigation. Rodriguez, 135 S. Ct.
at 1616 (internal quotation marks omitted); see also
United States v. Sharpe, 470 U.S. 675, 686 (1985). A
detainee’s exercise of his rights cannot excuse the
officer’s duty of diligence or justify improperly
prolonging a detention. Instead, an agent must
“diligently pursue[] a means of investigation that [is]
likely to confirm or dispel [his] suspicions quickly.”
Sharpe, 470 U.S. at 686. And only when the delay is
“almost entirely” attributable to the detainee’s
actions should a court sanction a prolonged delay.
Id. at 687–88.

7
Sharpe involved a 20-minute Terry stop, where a
suspect fled recklessly when signaled to pull over.
See id. at 678, 688 n.6. The Court explained that the
extended Terry stop—a stop that, unlike here, must
be based on reasonable suspicion—was justified only
because there was “no evidence that the officers were
dilatory in their investigation” and any “delay in the
case was attributable almost entirely to the evasive
actions of” the suspect. Id. at 687–88. As the Court
noted, the case “[c]learly” did “not involve any delay
unnecessary to the legitimate investigation of the law
enforcement officers,” and the suspect “presented no
evidence that the officers were dilatory in their
investigation.” Id. at 687 (emphasis added).
Until the decision below, lower courts have
faithfully followed Sharpe’s clear guidance. See Pet.
27–31. Indeed, courts in very similar cases have
rejected the approach embraced by the Court below.
Two such decisions—one from the Third Circuit and
one from the Ninth Circuit—are particularly notable.
In both cases, the lower courts recognized, consistent
with this Court’s precedent, that the length of a stop
must be tied to its mission and the stop cannot be
prolonged to allow officers to pursue unrelated
inquiries.
In Karnes v. Skrutski, the Third Circuit held that
a traffic detainee’s conduct—which included, among
other things, being “argumentative and difficult”—
could not justify prolonging a traffic stop to an
excessive length. 62 F.3d 485, 495–97 (3d Cir. 1995),
overruled in part on other grounds by Curley v. Klem,
499 F.3d 199, 209–11 (3d Cir. 2007). As the court
explained, the detainee “d[id] not bear the burden of

8
justifying his refusal to allow police to invade his
privacy”; instead, it is “the government official who
must meet the constitutional requirements before he
can encroach upon an individual’s privacy.” Id. at
497. Those “constitutional requirements” include
avoiding “additional delay.” Id. The officers argued
that “any additional delay was attributable to [the
detainee] because he asked the troopers questions,
argued with them, challenged their procedures, and
insisted on explanations as to their actions.” Id.
Even still, the Third Circuit held that the delayed
detention “was the result primarily of the [officers’]
dilatory pursuit of their investigation, not [the
detainee’s] questioning,” and that the officers’
argument about delay “shows a misunderstanding
about the purposes of the Fourth Amendment.” Id.
The Ninth Circuit confronted a similar situation
in Liberal v. Estrada, where the court rejected a
claim for qualified immunity arising out of a 45minute traffic stop that was attributable, in part, to
the conduct of the suspect. 632 F.3d 1064 (9th Cir.
2011). After a patrol car turned on its lights, the
suspect pulled into a darkened parking lot, turned off
his headlights, and confronted the officers about his
detention. Id. at 1068–69. Although this behavior
“certainly played a part in prolonging his detention,”
the court found the detention unconstitutionally
prolonged because the officers “were not diligently
pursuing a means of investigation that was likely to
confirm or dispel their suspicions quickly.” Id. at
1081. The stop should have lasted only five or ten
minutes—the time needed for “investigatory checks
to be run or [for] asking [the detainee] questions.” Id.
Yet the stop continued for more than half an hour

9
“merely to engage in an exaggerated display[] of
authority,” which the Ninth Circuit held was
“unreasonable and unconstitutional.” Id. (internal
quotation marks omitted).
In contrast, the Fifth Circuit here stretched
Sharpe well beyond its limits, ignoring altogether the
border patrol agents’ obligation to conduct a diligent
investigation into the only reason the stop was
permitted—whether petitioner was lawfully in the
United States. It is undisputed that very early in the
stop petitioner did everything needed to allow the
agents to determine his lawful right to be in the
United States. App. 103a–08a; 12a–13a (Elrod, J.,
dissenting). When asked, petitioner told the agents
that he was a United States citizen. App. 12a. And
within minutes and upon request, petitioner
surrendered both a personal and official U.S.
passport, App. 12a—documents that he was not even
required to have or produce at an interior checkpoint.
It should have taken only moments to confirm the
authenticity of those documents and send petitioner
on his way. There was no other lawful basis for
continuing his detention.
The Fifth Circuit excused the agents’ dilatory
conduct on the view that petitioner engaged in
purportedly “unorthodox tactics” during the stop and
“the agents had difficulty determining how to
respond.” App. 8a. But that makes no sense. The
only purpose of the stop was to determine whether
petitioner had a right to be in the United States and
nothing petitioner did prevented the agents from
asking the questions and inspecting the documents
needed to make that determination. The delay had

10
nothing to do with determining petitioner’s
citizenship; it resulted from the agents’ decision to
use the stop to question petitioner about his military
status and to complain to his military superiors when
he was less deferential than they might have
preferred. The notion that the agents could prolong
the stop for that purpose, merely because they did
not like petitioner’s demeanor, is absurd. That is
precisely the type of delay and improper conduct that
this Court’s precedents clearly prohibit. It is also
directly contrary to the decisions from the Third and
Ninth Circuits discussed above. Those courts have
recognized that the scope of an officer’s search or
seizure does not expand merely because a detainee or
a suspect peaceably questions the officer’s authority.
II. The Fifth Circuit’s Decision Invites Abuse
Whenever
A
Detainee
Engages
in
“Unorthodox Behavior.”
Unlike its general interest in criminal
enforcement, the government’s interest in making
suspicionless administrative detentions at internal
immigration
checkpoints
must
be
carefully
circumscribed to protect constitutional liberties. The
purpose of an immigration checkpoint is to
accomplish one, and only one, objective: to determine
whether the detainee has a lawful right to be in the
United States. To be sure, in some circumstances,
the conduct of the detainee may give rise to
reasonable suspicion of criminal activity, which could
justify a continued detention to investigate beyond
the initial purpose of the stop. Other times, it is
possible that the detainee’s behavior so interferes
with an agent’s activities (as in Sharpe), that it is

11
impossible for an agent to complete the stop within a
short time. But absent either circumstance, the stop
should last no longer than reasonably necessary for a
border patrol agent to determine the detainee’s
citizenship status.
The decision below departs from these clearly
established rules by creating a new and amorphous
exception for suspicionless stops: it invites border
patrol agents to extend stops whenever a detainee
engages in what the agents might characterize as
“unorthodox tactics,” App. 8a, which apparently
include asserting one’s constitutional rights. App.
11a (Elrod, J., dissenting); cf. Johnson v. United
States, 135 S. Ct. 2551, 2557 (2015) (noting due
process concerns when criminal law is “so
standardless it invites arbitrary enforcement”). But
the constitutional right to be free from unreasonable
seizures is “of little value if [it can] be . . . indirectly
denied” by border patrol agents whenever a
detainee’s
protected
behavior
is
arguably
“unorthodox.” U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 829 (1995) (internal quotation marks
omitted). That novel rule has no basis in precedent
and opens a very dangerous loophole in basic
principles of Fourth Amendment law.
This Court has long recognized that “[t]he
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.” City of Houston v.
Hill, 482 U.S. 451, 462–63 (1987); see also Norwell v.
City of Cincinnati, 414 U.S. 14, 16 (1973) (per
curiam) (reversing conviction of petitioner who

12
“verbally and negatively protested [the officer]’s
treatment of him”). As a result, “when an officer,
without reasonable suspicion or probable cause,
approaches an individual, . . . any refusal to
cooperate, without more, does not furnish the
minimal level of objective justification needed for a
detention or seizure.” Illinois v. Wardlow, 528 U.S.
119, 125 (2000) (internal quotation marks omitted).
And even when there may be reasonable suspicion for
a Terry stop, a detainee’s refusal to cooperate beyond
what the law requires cannot be a basis for extending
the duration of the limited stop. See, e.g., United
States v. Massenburg, 654 F.3d 480, 491 (4th Cir.
2011) (“refusing to consent to a search cannot itself
justify a nonconsensual search”). In the typical Terry
stop, “the officer may ask the detainee a moderate
number of questions to determine his identity and to
try to obtain information confirming or dispelling the
officer’s suspicions.” Berkemer v. McCarty, 468 U.S.
420, 439 (1984). “But,” importantly, “the detainee is
not obliged to respond.” Id.
As noted above, this case does not involve a Terry
stop, where reasonable suspicion is required. It
involves a suspicionless stop by border patrol agents,
which means that even more care should be required
to ensure that the stop remains within the proper
bounds of law.
A detainee’s constitutionally
protected behavior, regardless of whether it is
perceived by an agent as respectful and deferential or
ill-mannered and standoffish, cannot by itself be a
basis for prolonging a checkpoint detention for nonimmigration purposes. To the contrary, although an
individual traveling through an immigration
checkpoint must stop when ordered to do so, he has

13
no obligation to actively assist the immigration
inspection—just like the suspect detained at a Terry
stop has no constitutional obligation to respond. See
Berkemer, 468 U.S. at 439. If the individual chooses
not to answer some questions (or otherwise chooses
to invoke his rights), his conduct does not justify
indefinite detention until all questions (whether
related to immigration or not) are answered to the
border patrol agent’s satisfaction.
In short, a detainee’s behavior should not excuse
an agent from the duty to pursue diligently the only
legitimate reason for the detention—determining
citizenship status. An agent at an immigration
checkpoint could otherwise use any “unusual”
behavior as justification for detaining a traveler
indefinitely for purposes unrelated to citizenship,
converting the brief immigration stop into a de facto
arrest. See Sharpe, 470 U.S. at 685 (“Obviously, if an
investigative stop continues indefinitely, at some
point it can no longer be justified as an investigative
stop.”); Royer, 460 U.S. at 499 (“In the name of
investigating a person who is no more than suspected
of criminal activity, the police may not . . . seek to
verify their suspicions by means that approach the
conditions of arrest”). The Constitution does not
protect only the meek, polite, and compliant.
Regardless of a detainee’s behavior, “an officer
always has to be reasonably diligent” in focusing on
the legitimate mission of an investigatory stop. See
Rodriguez, 135 S. Ct. at 1616 (internal quotation
marks omitted).

14
III. The Question Presented Is Especially
Important And Worthy Of This Court’s
Review.
More than a hundred million travelers pass
through interior checkpoints every year, Pet. 32, and
concerns about unconstitutional conduct of border
patrol agents at those checkpoints has persisted for
decades. These concerns are widespread—as recent
reports from Arizona and California demonstrate—
and the Fifth Circuit’s decision opens the door to
abuse in important states where immigration
checkpoints are often used.
This Court should
therefore grant this petition to reaffirm the clear
constitutional limits on suspicionless stops and
prevent the potential abuses permitted under the
Fifth Circuit’s misguided approach.
Concerns regarding harassment and extended
detentions at checkpoints are serious. In the early
1990s, Judge Kozinski, reflecting on the “vast
potential for abuse” in conducting administrative
searches, urged an investigation into whether “the
Constitution is being routinely violated at these
checkpoints.” United States v. Soyland, 3 F.3d 1312,
1316, 1320 (9th Cir. 1993) (Kozinski, J., dissenting).
He further observed: “There’s reason to suspect the
agents working these checkpoints are looking for
more than illegal aliens. If this is true, it subverts
the rationale of Martinez-Fuerte and turns a
legitimate administrative search into a massive
violation of the Fourth Amendment.” Id. at 1316.
More recently, the ACLU of Arizona filed an
administrative complaint describing a series of
abuses suffered by citizens aged 6 to 69 years old,

15
during 12 separate incidents over a 15-month period
at 6 different Arizona checkpoints. See Letter of
James Lyall, Staff Attorney, ACLU of Arizona, to
U.S. Dep’t of Homeland Security, at 1 (Jan. 15, 2014),
available at https://www.aclusandiego.org/wp-content
/uploads/2014/11/ACLU-AZ-Complaint-re-CBP-Check
points-2014-01-15.pdf. As the complaint noted, the
ACLU “receives frequent reports” from Arizona
residents of “unconstitutional searches and seizures,
excessive use of force, racial profiling, and other
agent misconduct at checkpoints . . . including
searches based on service canines ‘alerting’ to
nonexistent contraband and prolonged, unjustified
detentions.” Id.
Of great concern, especially, is how little today’s
checkpoints resemble what the Court envisioned
when it first sanctioned their use:
[b]order [p]atrol checkpoints today bear little
resemblance to those authorized . . . in
Martinez-Fuerte.
Many border patrol
officials do not understand—or simply
ignore—the legal limits of their authority at
checkpoints. . . . [Agents] claimed, falsely,
that motorists could not make phone calls or
videotape
agents
searching
vehicles.
Multiple citizens have reported being told by
agents, “You have no rights here,” or that
refusal to consent to a search gives agents
probable cause for a search. In many cases,
agents
responded
to
citizens
who
legitimately asserted their rights with
additional abuses.
Id. at 15.

16
A California ACLU chapter made similar
observations recently: “Border residents describe . . .
being detained, interrogated and searched at
checkpoints they must pass through daily to go to
work, run errands, or take children to school. Some
agents abandon any pretext of immigration
enforcement,
conducting
generalized
criminal
investigations . . . .” ACLU of San Diego & Imperial
Counties, California, U.S. Border Patrol Interior
Enforcement, at 1 (Nov. 20, 2014), available at http://
www.acluaz.org/sites/default/files/documents/100%20
Mile%20Zone%20Updated%2011.20.2014.pdf.
Nationwide publicity regarding incidents of
violence between the public and police officers
underscores the need for law enforcement to exercise
restraint,
especially
when
interacting
with
individuals who are not suspected of any crime. In
this case, the extended detention “operated as
retribution against [petitioner] for asserting his
rights,” App. 15a (Elrod, J., dissenting), and one of
the agents told petitioner they would “do this the
hard way” because he declined requests to get out of
his car, App. 21a. Rather than allowing this type of
unnecessary escalation to occur, as the Fifth Circuit
has sanctioned here, the courts should encourage
officers to recognize an individual’s ability to stand
on his constitutional rights and not retaliate against
him for doing so. See Hill, 482 U.S. at 462, 471
(noting “constitutional requirement that, in the face
of verbal challenges to police action, officers . . . must
respond with restraint” and that “a properly trained
officer may reasonably be expected to exercise a
higher degree of restraint than the average citizen,
and thus be less likely to respond belligerently” to

17
verbal criticism and challenge) (internal quotation
marks omitted).
If it is not corrected, the Fifth Circuit’s new and
amorphous “unorthodox tactics” standard will leave
residents in border states uniquely unprotected from
Fourth Amendment violations. It will also almost
certainly make matters more difficult for hard
working law-enforcement officers in tense or difficult
situations. The best way to encourage agreeable
interactions between law enforcement and the public
is to avoid any doubt over what conduct is
permissible, and to ensure that immigration stops
are limited to the narrow purpose for which they are
permitted. By departing from this Court’s precedent,
the lower court’s decision blurs lines that are
supposed to be clear. It invites officers to make
subjective judgments about the orthodoxy of
someone’s behavior as a justification for continued
detention. And it cannot help but lead to more
controversies over how far an agent may stray from
the purpose of a suspicionless stop when faced with a
citizen who chooses to stand on his rights. Observing
the clear lines and strict limits for suspicionless
detentions drawn by this Court will avoid that kind
of subjective and impermissible line drawing.
Finally, not only does this petition present two
splits of authority, see Pet. 14–31, but it is also an
opportunity for the Court to address a troubling
pattern of conduct by certain border patrol agents in
our Nation’s border states. Although concern about
abuse is widespread, few cases arising from border
patrol checkpoints reach this Court.
This case
therefore presents a unique, and significant,

18
opportunity to reaffirm the constitutional principles
that apply to this increasingly important area of the
law.
CONCLUSION
For these reasons, the petition for certiorari
should be granted.
Respectfully submitted,
ASHLEY C. PARRISH
Counsel of Record
KING & SPALDING LLP
1700 Pennsylvania Ave., NW
Washington, DC 20006
(202) 737-0500
aparrish@kslaw.com
MERRITT MCALISTER
KING & SPALDING LLP
1180 Peachtree St., NE
Atlanta, GA 30309
(404) 572-4600
AMY C. EIKEL
KING & SPALDING LLP
1100 Louisiana St., Suite 4000
Houston, TX 77002
(713) 751-3200
Counsel for Amici Curiae the
Texas Civil Rights Project
and the National Immigration
Project
September 8, 2015

No. 15-168

In the Supreme Court of the United States
RICHARD RYNEARSON, PETITIONER
v.
JUSTIN K. LANDS, BORDER PATROL AGENT, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
MARK B. STERN
STEVE FRANK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

QUESTION PRESENTED

Whether respondents are entitled to qualified immunity in this Bivens action because no clearly established law established that their investigation of petitioner’s immigration status, which kept petitioner at a
U.S. Border Patrol highway checkpoint for about 34
minutes, violated the Fourth Amendment.

(I)

TABLE OF CONTENTS

Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument....................................................................................... 8
Conclusion ................................................................................... 13
TABLE OF AUTHORITIES

Cases:
Anderson v. Creighton, 483 U.S. 635 (1987) ......................... 8
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) ........................... 9
Carroll v. Carman, 135 S. Ct. 348 (2014) .............................. 9
Malley v. Briggs, 475 U.S. 335 (1986).................................... 9
Pearson v. Callahan, 555 U.S. 223 (2009) ............................. 8
Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) ......................... 9
Reichle v. Howards, 132 S. Ct. 2088 (2012)........................... 8
United States v. Martinez-Fuerte, 428 U.S. 543
(1976) ................................................................................ 9, 10
United States v. Massie, 65 F.3d 843 (10th Cir.
1995) ............................................................................... 11, 12
United States v. Sharpe, 470 U.S. 675 (1985) ..................... 10
United States v. Taylor, 934 F.2d 218 (9th Cir. 1991),
cert denied, 502 U.S. 1074 (1992) ...................................... 11
Wilson v. Layne, 526 U.S. 608 (1999) ................................ 8, 9
Constitution:
U.S. Const. Amend. IV.......................................... 2, 6, 7, 9, 12
Miscellaneous:
Veterans Against Police Abuse, http://www.
veteransagainstpoliceabuse.org/ ......................................... 4

(III)

IV
Miscellaneous—Continued:

Page

Video:
Pt. 1, https://www.youtube.com/watch?v=
4BId1f8WG2s (Apr. 25, 2010) ................................. 3, 4
Pt. 4, https://www.youtube.com/watch?v=
mZbCCBH7YM4 (Apr. 25, 2010) ........................... 5, 6

In the Supreme Court of the United States
No. 15-168
RICHARD RYNEARSON, PETITIONER
v.
JUSTIN K. LANDS, BORDER PATROL AGENT, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION
OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a18a) is not published in the Federal Reporter but is
reprinted at 601 Fed. Appx. 302. The opinions of the
district court (Pet. App. 19a-49a) and magistrate
judge (Pet. App. 50a-89a) are unreported.
JURISDICTION

The judgment of the court of appeals was entered
on February 26, 2015. A petition for rehearing was
denied on May 4, 2015 (Pet. App. 90a-91a). The petition for writ of certiorari was filed on August 3, 2015.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT

This Bivens case concerns petitioner’s experience
at a highway immigration checkpoint located about 60
miles from the Mexican border. Pet. App. 20a. Petitioner’s delay at the checkpoint, which would normally
(1)

2
have been very brief, lasted approximately 34 minutes
due to delays following petitioner’s use of what the
court of appeals termed “unorthodox tactics” when
refusing to cooperate with U.S. Border Patrol agents.
See id. at 8a. Petitioner seeks monetary damages
from respondents—two individual Border Patrol
agents—based on his contention that the checkpoint
delay violated his Fourth Amendment rights. The
question presented is whether respondents are entitled to qualified immunity because petitioner failed to
identify clearly established law showing that their
conduct in the wake of “unorthodox tactics” by an
“unusually uncooperative person” (ibid.) violated the
Fourth Amendment.
1. On March 18, 2010, petitioner drove his twodoor vehicle into a Border Patrol checkpoint on Highway 90 near Ulvade, Texas. Pet. App. 20a. Petitioner,
an Air Force officer, entered the checkpoint in a line
of traffic and approached Border Patrol Agent Justin
Lands with his driver’s side window “slightly
cracked.” Ibid. Because of the traffic noise, Agent
Lands asked petitioner to lower his window so that he
could hear him. Ibid. Petitioner lowered his window
just “a little further.” Ibid. At that point, Agent
Lands directed petitioner to the secondary inspection
area, noting to petitioner the heavy traffic behind him
in the checkpoint lane. Ibid. This initial interaction
lasted “mere seconds.” Ibid.
Petitioner exited the line of traffic into the secondary inspection area but closed his window completely.
Pet. App. 20a-21a. Agent Lands approached and
asked petitioner to exit the vehicle. Id. at 21a. Petitioner refused through his fully closed window and
demanded to know the reason for the request. Ibid.

3
Agent Lands explained that the noise from the highway and checkpoint made it difficult to hear petitioner; Agent Lands thus asked petitioner several times to
lower his window. Ibid. “Despite numerous requests,
[petitioner] adamantly refused to roll down the window.” Ibid. Instead, from the relative quiet of his
closed car, petitioner repeatedly asked Agent Lands if
he was being detained and, if so, on what grounds.
Ibid.
When Agent Lands asked petitioner for identification, petitioner placed two documents—a driver’s
license and military identification card—against the
inside of his still-closed window. Pet. App. 21a. Agent
Lands stated that he would need to inspect the documents to insure that they were valid, but petitioner
refused to open his window. Ibid. Petitioner continued to ask whether he was being detained, and when
Agent Lands again repeated that he was having difficulty hearing petitioner, petitioner responded from
the quiet of his car that the agent could hear him.
Ibid.
Petitioner made several calls from his mobile
phone, including one to the San Antonio office of the
Federal Bureau of Investigation (FBI). Pet. App. 22a.
During his call to the FBI, petitioner explained that
he was at a Border Patrol checkpoint, asserted that
the Border Patrol agents had no reasonable suspicion
to “search” his vehicle, and stated that he did not want
to lower his window and felt threatened. Ibid. Petitioner told the FBI agent on the phone that “everything is being filmed from several different angles
[from] inside the vehicle” and that he was going to
“put[] it over the internet.” See Video Pt. 1, at 7:55-

4
8:05. 1 Although the agent’s response is not audible on
petitioner’s video, the video indicates that petitioner
was not pleased by the response. Petitioner answered: “But they have no right to search my vehicle”
and, after an apparent explanation from the FBI
agent, petitioner added, “Why would I do that? * * *
They’re threatening. I mean, they have weapons.” Id.
at 8:15-8:35. Meanwhile, the video shows Border
Patrol agents simply standing outside petitioner’s
vehicle. Ibid. None of the agents drew or brandished
their weapons during the encounter or took threatening actions. After further responses from the FBI
agent, petitioner states, “But they don’t have reasonable suspicion”; and “Okay. So you’re saying I have to
give up my Fourth Amendment rights.” Id. at 8:409:05. Petitioner ends the conversation with a sigh and
a request for the agent’s name. Id. at 9:25-9:55.
About ten minutes into the encounter, petitioner
slightly lowered his window and told Agent Lands
that, according to the FBI, reasonable suspicion is
required before agents could conduct a search of a
vehicle. Pet. App. 22a. Petitioner then continued to
debate the legal standard to justify stopping a person
at an immigration checkpoint. Ibid. Agent Lands
asked petitioner if he was a United States citizen and
petitioner responded “yes.” Ibid.
When petitioner continued to challenge the reasons
for his detention, Agent Lands summoned a supervi1

Petitioner posted his four-part video on the internet, and respondents included the video as an exhibit to their motion to
dismiss. Pet. App. 2a. Part I of the video, which is available at
https://www.youtube.com/watch?v=4BId1f8WG2s, bears the logo
of “Veterans Against Police Abuse,” an entity that lists petitioner
as its founder. See http://www.veteransagainstpoliceabuse.org/.

5
sor to discuss the situation with petitioner. Pet. App.
22a-23a. As Agent Lands walked away, petitioner
placed two passports against the closed driver’s side
window. Id. at 23a.
Supervisory Agent Raul Perez then arrived at petitioner’s car. Pet. App. 23a. Agent Perez asked petitioner to hand him the passports and inquired into
identity of petitioner’s commanding officer. Ibid.
Although petitioner had placed a military identification card against his car window, he refused to identify his commanding officer and accused Agent Perez of
attempting to interfere with his employment. Id. at
23a; see id. at 21a. Agent Perez took possession of the
passports, stated that he would validate the passport
information, and left the secondary area. Id. at 23a.
Agent Perez returned to tell petitioner that he would
call Air Force officials. Ibid. Petitioner responded,
“okay.” Ibid.
The passports were returned to petitioner approximately thirteen minutes, at which point an agent
informed petitioner that he was free to go. Pet. App.
23a; see id. at 23a-24a (summarizing discussion). The
agent stated that he appreciated petitioner’s cooperation and requested that, “next time, if you’d just be a
little bit more cooperative,” it would help to expedite
the process. Video Pt. 4, at 3:55-4:10, https://www.
youtube.com/watch?v=mZbCCBH7YM4. The agent
explained, “I know you might be able to hear us just
fine, but we have a lot of traffic out here” and the
“highway noise” makes it difficult to hear. Id. at 4:054:15. “If you could roll down your window * * * at
least enough so that we can communicate,” the agent
stated, it would help the Border Patrol agents, who
are “trying to do this as expedient[ly] as possible” to

6
keep the traffic moving. Id. at 4:10-4:30. The agent
also suggested that if petitioner had his identification
handy and “if you want to just hand it to us and let us
look at it, that would be fine,” because the agents need
“to inspect it to make sure it’s not a counterfeit document,” which cannot be done through a window. Id. at
4:30-4:54. The agent ended by telling petitioner, “You
have a safe trip, Sir. Watch out for traffic. It’s real
busy.” Id. at 4:55-5:05.
The entire stop lasted about 34 minutes. Pet. App.
24a. No search was conducted of petitioner’s vehicle,
which petitioner never exited. Ibid.
2. Petitioner subsequently filed this action which,
as relevant here, asserted Bivens claims against
Agents Lands and Perez in their individual capacities.
The district court referred the matter to a magistrate
judge, who recommended that the court grant respondents’ motion to dismiss, or for sumary judgment
on, the Bivens claims. Pet. App. 50a-89a.
The district court adopted the recommendation and
granted the motion. Pet. App. 19a-49a. The court
concluded that the stop, notwithstanding its duration,
did not violate the Fourth Amendment. Id. at 32a-41a.
The court concluded that petitioner’s “own actions,”
including his “refus[al] to lower his window” and
“combative” behavior during the stop, “impeded the
agent’s efforts to complete his investigation.” Id. at
38a, 40a; see id. at 38a-41a. The court further concluded that petitioner’s “abnormal behavior” gave rise
to a “reasonable suspicion that [petitioner] was involved in some criminal activity.” Id. at 41a.
3. a. The court of appeals affirmed in an unpublished per curiam opinion. Pet. App. 1a-18a. The
court observed that the Fourth Amendment permits a

7
“routine immigration checkpoint stop conducted without reasonable suspicion,” id. at 6a, and that the parties did not dispute the lawfulness of the initial stop,
id. at 7a. The court also noted that “[n]either [petitioner] nor his car was searched.” Ibid. Petitioner
thus argued that respondents violated the Fourth
Amendment by “being ‘intentionally dilatory’ ” in their
conduct of the stop. Id. at 6a-7a. The court, however,
concluded that it need not decide whether petitioner
“had some limited Fourth Amendment right to refuse
to cooperate” with the Border Patrol agents, which, if
it existed, might support petitioner’s view that the
stop’s duration violated the Fourth Amendment. Id.
at 8a. The majority instead concluded that respondents “were entitled to qualified immunity” because
their conduct did not violate “any clearly established
constitutional right.” Id. at 8a-9a.
The court of appeals explained that the agents here
“had difficulty determining how to respond to [petitioner’s] unorthodox tactics” at the highway checkpoint. Pet. App. 8a. Petitioner’s conduct, the court
emphasized, was “unusual at least in [terms of ] the
facts described in any of the caselaw” it had identified.
Ibid. The court added that it “ha[d] not discovered
nor been shown any authority supporting [petitioner’s] claim that the constitutional rights that he chose
to stand on were clearly established.” Ibid. Accordingly, the court concluded, respondents, “at worst,
made reasonable but mistaken judgments when presented with an unusually uncooperative person” and,
for that reason, were entitled to qualified immunity.
Ibid.
b. Judge Elrod dissented. Pet. App. 10a-18a. She
concluded that respondents had unreasonably extend-

8
ed petitioner’s checkpoint stop after petitioner presented his passports for inspection. Id. at 16a. No
reasonable officer, Judge Elrod concluded, would have
taken so long to authenticate the passports or called
petitioner’s employer. Id. at 16a-17a.
ARGUMENT

The court of appeals correctly held that respondents are entitled to qualified immunity in this Bivens
action. That decision does not conflict with any decision of this Court or any other court of appeals. Further review is unwarranted.
1. To defeat a claim of qualified immunity, a plaintiff must plead and ultimately prove that (i) the defendant committed “a violation of a constitutional
right” and (ii) “the right at issue was ‘clearly established’ at the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(citation omitted). To determine whether a right was
“clearly established,” a court must first define the
right at the appropriate level of specificity. That is
because any constitutional right would be deemed
“clearly established” if framed at a broad level of
generality, thus depriving government officials of
qualified immunity. See Wilson v. Layne, 526 U.S.
608, 614-615 (1999); Anderson v. Creighton, 483 U.S.
635, 639 (1987). Accordingly, a right must be established “in a ‘particularized’ sense so that the ‘contours’
of the right are clear to a reasonable official.” Reichle
v. Howards, 132 S. Ct. 2088, 2094 (2012) (quoting
Anderson, 483 U.S. at 640).
Once the right is properly framed, a court must determine whether “every reasonable official would
[have understood] that what he is doing violates that
right.” Reichle, 132 S. Ct. at 2093 (citation and inter-

9
nal quotation marks omitted; brackets in original).
That standard is satisfied only if “existing precedent
* * * ha[s] placed the * * * constitutional question
confronted by the official beyond debate.” Plumhoff
v. Rickard, 134 S. Ct. 2012, 2023 (2014) (citation and
internal quotation marks omitted). In other words,
“controlling authority” or at least “a robust ‘consensus
of cases of persuasive authority’ ” must establish that
the official’s conduct was unconstitutional. Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2084 (2011) (quoting Wilson,
526 U.S. at 617). That authority must address circumstances sufficiently similar to those at issue so that it
places the relevant constitutional question “beyond
debate.” Carroll v. Carman, 135 S. Ct. 348, 350,
(2014) (per curiam) (quoting al-Kidd, 131 S. Ct. at
2083). Qualified immunity thereby “gives government
officials breathing room to make reasonable but mistaken judgments” by “protect[ing] ‘all but the plainly
incompetent or those who knowingly violate the law.’ ”
al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs,
475 U.S. 335, 341(1986)).
The court of appeals correctly held that respondents are entitled to qualified immunity because petitioner failed to demonstrate that they violated any
clearly established Fourth Amendment right. This
Court has long recognized that “stops for brief questioning routinely conducted at permanent [Border
Patrol] checkpoints are consistent with the Fourth
Amendment.” United States v. Martinez-Fuerte, 428
U.S. 543, 566 (1976). Moreover, “no particularized
reason need exist to justify” referring a motorist to a
secondary inspection area at such checkpoints for
questioning. Id. at 563-564. Petitioner does not dispute these principles. In fact, petitioner now makes

10
clear that he no longer challenges the first 11 minutes
of his 34-minute stop. Pet. 12. In doing so, petitioner
abandons his challenge to the overall duration of the
stop that the court of appeals rejected.
Petitioner now contends (Pet. 12) that the final 23
minutes of the stop was unconstitutional because, he
asserts, that delay was “unrelated to any [of his] ‘unorthodox tactics.’ ” But nothing supports the view that
petitioner’s unusual conduct during the initial portion
of the stop should be deemed unrelated to the stop’s
overall duration. A fixed Border Patrol checkpoint’s
primary function is to monitor for immigration violations by stopping and questioning motorists in the
vicinity of the border. In the normally “brief detention” that results, the vehicle’s occupants are required
to provide “a response to a brief question or two” and
possibly to produce “a document evidencing a right to
be in the United States.” Martinez-Fuerte, 428 U.S.
at 558 (citation omitted). But when a motorist exhibits
unorthodox behavior by, for instance, repeatedly refusing to open his window when requested by agents
attempting to speak with him and declining to hand
over identification for inspection, officers may reasonably investigate such atypical behavior. See United
States v. Sharpe, 470 U.S. 675, 685 (1985) (The reasonableness of an investigatory stop is judged using
“common sense and ordinary human experience.”).
Such suspicious behavior can warrant a reasonably
extended stop, particularly where, as here, a motorist’s own actions undermine the speed at which agents
can effectively discharge their duties.
Petitioner’s focus (Pet. 23) on respondent’s telephone call to confirm petitioner’s military status is
particularly anomalous because petitioner himself

11
showed his military identification in response to the
stop. Having asserted his military employment to
Border Patrol agents, petitioner cannot properly
complain that the agents violated a clearly established
constitutional right by verifying his assertion in the
course of investigating his immigration status. See
Pet. App. 40a (“Although [petitioner] 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.”). Indeed, petitioner
identifies no decision basing a constitutional violation
on similar conduct.
2. Petitioner asserts (Pet. 21) that the court of appeals’ “h[e]ld[] that agents may pursue inquiries unrelated to immigration status during an immigration
checkpoint detention” and contends (Pet. 21-27) that
that purported holding conflicts with holdings in
United States v. Massie, 65 F.3d 843 (10th Cir. 1995),
and United States v. Taylor, 934 F.2d 218 (9th Cir.
1991), cert denied, 502 U.S. 1074 (1992). But the court
of appeals did not hold that agents may delay an immigration stop with inquiries wholly unrelated to
immigration status. To the contrary, the court stated
that “[t]he purpose of [an immigration] stop is limited
to ascertaining the occupants’ citizenship status” and
its “duration” is limited to the period “reasonably necessary” to pursue that inquiry. Pet. App. 6a (citation
omitted).
Moreover, Taylor addressed (and upheld) a search
that occurred after the border-enforcement functions
of the stop had been fully resolved, 934 F.2d at 220,
while Massie concluded that agents may pursue ques-

12
tions related to their immigration-enforcement and
contraband-detection duties, 65 F.3d at 848. Neither
decision conflicts with the decision of the court of
appeals here, which did not decide whether respondents’ conduct ultimately violated the Fourth Amendment. See Pet. App. 8a. The court instead held that
respondents were entitled to qualified immunity because they confronted an “unusually uncooperative
person” presenting circumstances for which no “clearly established” Fourth Amendment law yet existed.
Id. at 8a-9a.
Petitioner separately contends (Pet. 27-31) that the
court of appeals’ decision conflicts with decisions of
other courts of appeals rendered in contexts that do
not involve immigration checkpoints. Petitioner argues (Pet. 27) that such decisions show that, even
when a detainee causes a law-enforcement stop to be
delayed to some extent, law-enforcement officers may
violate the Fourth Amendment by further extending
the stop beyond the period warranted by a reasonably
diligent investigation. The court of appeals here did
not conclude otherwise; it recognized that the “permissible duration of an immigration checkpoint stop”
is “the time reasonably necessary to determine the
citizenship status of the persons stopped.” Pet. App.
6a (citation omitted). But respondents’ investigation
into petitioner’s status was itself delayed by petitioner’s conduct. Although the court assumed that respondents might have made “mistaken judgments”
about how to pursue their investigation “when presented with an unusually uncooperative person,” no
clearly established law would have put the agents on
notice that their conduct was unconstitutional. Id. at
8a.

13
CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
MARK B. STERN
STEVE FRANK
Attorneys

FEBRUARY 2016

NO. 15-168

In the
Supreme Court of the United States
RICHARD RYNEARSON,
Petitioner,
v.
AGENT LANDS, BORDER PATROL AGENT, INDIVIDUALLY,
AND RAUL PEREZ, BORDER PATROL AGENT,
INDIVIDUALLY.
________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Fifth Circuit
________________
REPLY BRIEF FOR THE PETITIONER
________________
Ruthanne M. Deutsch
Washington, DC

J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, TX 75206
(469) 600-9455
ccecere@cecerepc.com

TABLE OF CONTENTS
INTRODUCTION ....................................................... 1
I.

THE DECISION BELOW CONFLICTS
WITH DECISIONS OF THIS COURT AND
OTHER CIRCUITS. ............................................ 2
A. Conflicts Exist Over Whether Agents
May Conduct Inquiries Unrelated To
Immigration During Checkpoint Stops. ...... 4
B. A Conflict Exists Over Whether A
Detainee’s
Delay-Causing
Conduct
Excuses
Officers’
Obligation
Of
Diligence. ...................................................... 7

II. THE
DECISION
BELOW
WAS
BLATANTLY WRONG...................................... 10
III. AT A MINIMUM, THIS CASE SHOULD BE
REMANDED IN LIGHT OF RODRIGUEZ. .... 13
CONCLUSION ......................................................... 14

(i)

ii
TABLE OF AUTHORITIES
CASES:
Ashcroft v. Al-Kidd,
131 S. Ct. 2074 (2011) ........................................ 4, 6
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) ................................................ 11
Karnes v. Skrutski,
62 F.3d 485 (3d Cir. 1995)...................................... 9
Knowles v. Iowa,
525 U.S. 113 (1998) ................................................ 2
Lawrence v. Chater,
516 U.S. 163 (1996) (per curiam)......................... 13
Liberal v. Estrada,
632 F.3d 1064 (9th Cir. 2011) ................................ 9
Rodriguez v. United States,
135 S. Ct. 1609 (2015) .................................. 3, 6, 13
Seymour v. City of Des Moines,
519 F.3d 790 (8th Cir. 2008) ................................ 10
United States v. Brignoni-Ponce,
422 U.S. 873 (1975) ............................................ 3, 4
United States v. Martinez-Fuerte,
428 U.S. 543 (1976) .......................................passim
United States v. Massie,
65 F.3d 843 (10th Cir. 1995) .............................. 5, 6

iii
United States v. Sharpe,
470 U.S. 675 (1985) ................................................ 8
United States v. Taylor,
934 F.2d 218 (9th Cir. 1991) .............................. 5, 7
CONSTITUTION AND STATUTES:
U.S. CONST., Amend. IV .....................................passim
OTHER AUTHORITIES:
Am. Civil Liberties Union of Ariz., Record of
Abuse: Lawlessness and Impunity in
Border Patrol’s Interior Enforcement
Operations, Oct. 2015 ........................................ 12

In the
Supreme Court of the United States
________________
NO. 15-168
RICHARD RYNEARSON,
Petitioner,
v.
AGENT LANDS, BORDER PATROL AGENT, INDIVIDUALLY,
AND RAUL PEREZ, BORDER PATROL AGENT,
INDIVIDUALLY.
________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Fifth Circuit
________________
REPLY BRIEF FOR THE PETITIONER
________________
INTRODUCTION
Probable cause, consent, and reasonable
suspicion. These are the only three circumstances
that justify extending immigration checkpoint
detentions beyond the sharply limited time the
Fourth Amendment permits for such suspicionless
intrusions upon a motorist’s liberty. The permissible
duration of such stops is measured in mere minutes:
the time needed for “a brief question or two” about
the motorist’s immigration status and “possibly the
production of a document evidencing a right to be in
the United States.” United States v. Martinez-Fuerte,
428 U.S. 543, 558 (1976).
(1)

2
It is undisputed that none of these
circumstances were present here. But the Fifth
Circuit nonetheless upheld the legality of a
checkpoint stop of more than 34 minutes. The
decision below cannot stand.
To uphold the detention, the Fifth Circuit
created a new category of justification for extending
these no-suspicion detentions: investigation of a
detainee’s “unorthodox” behavior, which may also be
labeled “atypical” or “unusual” (BIO 10), but does not
raise suspicion of criminal activity. Pet. App. 8a.1
There is no basis for this new broad, standardless,
and impermissible sort of detention. Unsurprisingly,
the Fifth Circuit’s rule creates intractable conflicts
with this Court’s precedents and the established
rules governing checkpoint detentions in other
circuits.
I.

THE DECISION BELOW CONFLICTS WITH
DECISIONS OF THIS COURT AND OTHER
CIRCUITS.

The
government
nowhere
denies
that
permissible immigration checkpoint detentions must
remain objectively brief, no longer than a few
minutes. Pet. 15; Martinez-Fuerte, 428 U.S. at 547.
1
The government mentions (BIO 6) the district court’s
conclusion that the detention’s length was justified by
reasonable suspicion, but nowhere denies its concession at oral
argument before the Fifth Circuit that reasonable suspicion was
absent. See Pet. 9; Pet. App. 7a; id. at 16a n.7 (Elrod, J.,
dissenting). The government likewise waives any reasonable
suspicion argument in this Court, by “failing to raise it in its
brief in opposition to the petition for certiorari.” Knowles v.
Iowa, 525 U.S. 113, 116 n.2 (1998).

3
That concession alone fatally undermines the Fifth
Circuit’s decision to uphold a plainly unreasonable
34-minute detention.
See id.
The government
contends (BIO 10) that by focusing on the latter part
of the stop, Rynearson has “abandon[ed] his
challenge” to its overall duration. Not so. Although
Rynearson’s argument focuses on the agents’ dilatory
conduct in the detention’s final 23 minutes, part of
what makes that conduct unconstitutional is its
contribution to a detention with an overall length
that is objectively unreasonable.
The rule from Martinez-Fuerte is plain: Any
detention beyond a brief, routine inquiry into
immigration status “must be based on consent or
probable cause.” 428 U.S. at 567 (internal quotation
marks omitted). Add to that agents’ independent
authority to seize individuals for reasonable
suspicion of criminal activity, see United States v.
Brignoni-Ponce, 422 U.S. 873, 882 (1975), and that
leaves only three justifications to extend a checkpoint
detention: consent, probable cause, and reasonable
suspicion. See, e.g., Martinez-Fuerte, 428 U.S. at 567.
These are not examples, but the exclusive bases for
extending a non-arrest seizure beyond the “time
needed to handle the matter for which the stop was
made,” Rodriguez v. United States, 135 S. Ct. 1609,
1612 (2015): a “limited inquiry into residence status,”
Martinez-Fuerte, 428 U.S. at 560.
None of these grounds were present to justify
detaining Rynearson far beyond the time necessary
for completing the immigration inquiry, when the
legitimate aims of the detention were satisfied. And
each of the ad hoc justifications the Fifth Circuit
came up with to justify this 34-minute suspicionless

4
detention creates a regime under which an agent’s
arbitrary desire to investigate a detainee’s atypical—
but admittedly not criminal—behavior overrides
strict limits on the permissible scope of a
suspicionless
immigration
detention,
creating
conflicts with the decisions of this Court and other
courts of appeals.
A. Conflicts Exist Over Whether Agents
May Conduct Inquiries Unrelated To
Immigration During Checkpoint Stops.
The government itself reads the Fifth Circuit’s
decision to allow checkpoint detentions to be
“reasonably extended” beyond the time needed to
verify immigration status to “investigate” topics
unrelated to immigration status, if the investigation
is (1) about conduct the agents deem “unusual,”
“unorthodox,” “atypical,” or “suspicious” (though not
suspicious of criminal activity) (BIO 10); or (2) to
“verify[] [an] assertion” made during the immigration
inspection (regardless of its relationship to
immigration status) (BIO 11). These justifications
conflict with the law of this Court, and disregard law
clearly established in a “robust consensus” of other
circuits, Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2084
(2011) (internal quotation marks omitted), in two
ways. First, the Fifth Circuit’s rule permits agents to
extend checkpoint detentions without any suspicion
of criminal activity. Second, it permits investigations
during a checkpoint detention that bear no relation
to the detention’s justifying purpose—immigration.
1. This Court has made clear that reasonable
suspicion is required to convert a checkpoint
detention into an investigative seizure.
See
Martinez-Fuerte, 428 U.S. at 567; Brignoni-Ponce,

5
422 U.S. at 882. The Ninth and Tenth Circuits
likewise require suspicion of criminal activity before
a checkpoint seizure can be extended beyond the few
minutes needed to investigate immigration status.
United States v. Massie, 65 F.3d 843, 848 (10th Cir.
1995); United States v. Taylor, 934 F.2d 218, 221 (9th
Cir. 1991). The Fifth Circuit, on the other hand,
permitted a “reasonably extended stop” for officers to
“investigate” Rynearson’s alleged “atypical behavior”
(BIO 10), although the Fifth Circuit’s rule does not
require, and the government does not contend, that
this behavior suggested criminality. That creates an
intractable conflict.
In hopes of dispelling the conflict, the
government notes that all three circuits would permit
checkpoint detentions to be lengthened for some
reason. (BIO 11-12.) But the conflict concerns not
whether a stop can be extended, but what grounds
will permit the extension.
The Ninth Circuit
requires some “suspicion of criminal activity.”
Taylor, 934 F.2d at 221 (internal quotation marks
and citations omitted). The Tenth Circuit requires
suspicion of criminal activity “reasonably related” to
the
basic
immigration-enforcement
mission—
“unauthorized entry of individuals” or “smuggling of
contraband.”
Massie, 65 F.3d at 848 (internal
quotation marks omitted). Not so in the Fifth
Circuit, where any-old “unorthodox” detainee
behavior will do, whether suggestive of criminality or
not.2
The government also glosses over this conflict (BIO 11-12)
by emphasizing that the Fifth Circuit held only that the law
was not “clearly established” on whether checkpoint detentions
2

6
2. Beyond permitting an extended detention for
“atypical,” but not criminally suspicious, behavior,
the Fifth Circuit’s decision creates another conflict by
eliminating long-standing restrictions on the
permissible scope of immigration checkpoint
investigations.
It has long been established that the duration of
a seizure short of arrest is limited by its purpose, and
a seizure becomes unlawful if it is lengthened by
“unrelated investigations.” Rodriguez, 135 S. Ct. at
1614. But even under the government’s reading (BIO
10-11), the Fifth Circuit permits unrelated
investigations to lengthen detentions, essentially
indefinitely, so long as they involve “verifying” some
statement
made
during
the
immigration
investigation. And the Fifth Circuit permits those
“verifications” even after the production of documents
“evidencing a right to be in the United States,” which
marks the outer bounds of the stop’s permissible
duration, Martinez-Fuerte, 428 U.S. at 558.
That rule is flatly inconsistent with the law in
other circuits. As the government admits, the Tenth
Circuit allows only questioning related to
“immigration-enforcement and contraband-detection
duties” (BIO 12 (citing Massie, 65 F.3d at 848)), and
the Ninth Circuit draws an even harder line,
allowing only “a few brief questions” absent criminal
could be lengthened to investigate “unorthodox behavior,”
stopping short of actually articulating any Fourth Amendment
standard. But conflict remains because the Fifth Circuit allows
for a possibility that the Ninth and Tenth Circuits clearly
prohibit, and thus departs from the “robust consensus” of circuit
authority. Ashcroft, 131 S. Ct. at 2084 (internal quotation
marks omitted).

7
suspicion. Taylor, 934 F.2d at 220. Neither circuit
permits
the
dragnet
verification-of-anythingmentioned-during-the-stop inquiry permitted in the
Fifth Circuit.
The government cites (BIO 11) the Fifth
Circuit’s statement that the purpose of a checkpoint
stop “is limited to ascertaining the occupants’
citizenship status” in an attempt to dispel the
conflict, but correctly acknowledges (in fact,
contends) that the Fifth Circuit’s rule still permits
“verif[ication]” of Rynearson’s “military employment”
simply because that topic came up in the course of
the checkpoint inquiry.
That verification-ofanything-mentioned
rule
necessarily
permits
detentions longer than needed to ascertain
citizenship status. If border patrol agents may ask
questions unrelated to immigration status and verify
the answers as part of the immigration inquiry, then
immigration detentions can be continued indefinitely,
and the restriction of checkpoint detentions to a
“routine and limited inquiry into residence status,”
Martinez-Fuerte, 428 U.S. at 560, ceases to have any
meaning. Indeed, that is what happened here. The
“verification” stage went on long after Rynearson
produced two passports—the latest point at which
the detention should have concluded.
B. A Conflict Exists Over Whether A
Detainee’s
Delay-Causing
Conduct
Excuses
Officers’
Obligation
Of
Diligence.
The conflicts created by the Fifth Circuit’s
decision cannot be confined to the immigrationcheckpoint context.
The Fifth Circuit has also
uprooted Fourth Amendment law for all detentions

8
short of arrest, by using a detainee’s supposedly
disruptive conduct as justification to absolve agents
of their otherwise universal duty to diligently pursue
the investigatory reason for the detention.
The government (BIO 10) defends the Fifth
Circuit’s holding affording agents license for
extended side-excursions whenever they encounter
“unusual” behavior from a detainee by pointing to
this Court’s acknowledgement in United States v.
Sharpe, 470 U.S. 675, 685 (1986) that “common sense
and ordinary human experience” should guide
determinations of a seizure’s reasonableness. But
the government gets Sharpe backwards. Sharpe’s
“common sense” conclusion is that a detainee’s
interference may make it necessary for officers to
take more time to complete their detentionprompting investigation. Id. at 685. But a detainee’s
interference provides no exception from officers’
otherwise universal obligation to “diligently pursue[]
a means of investigation that was likely to confirm or
dispel their suspicions quickly.” Id. at 686. And
under no reading of the facts here can the
government claim that the behavior of this
motorist—who volunteered two passports on his own
initiative and answered every immigration-related
question the agents posed to him (and many
others)—could be said to have “interfered” with the
legitimate aims of this investigation, even if his
behavior was “unorthodox,” Pet. App. 8a.
Although the government contends that some
(unspecified) part of “respondents’ investigation into
petitioner’s status” was “delayed by petitioner’s
conduct” (BIO 12), it does not identify any conduct in
the final 23 minutes of detention that actually

9
“undermined” the agents’ ability to conduct an
immigration inspection.
Nor could it, when
Rynearson spent the majority of that time sitting
alone in his car. Pet. 6-7. That portion of the delay
was caused entirely by the agents’ decision to
“ignor[e] the passports and plac[e] phone calls to
Rynearson’s employer,” Pet. App. 17a (Elrod, J.,
dissenting), not Rynearson’s purportedly “unorthodox
tactics.”
In
pointing
to
Rynearson’s
supposedly
“unorthodox tactics” as grounds to excuse this
acknowledged lack of diligence, moreover, the Fifth
Circuit broke with the Third and Ninth Circuits, both
of which have rejected qualified-immunity claims on
analogous facts. The Third and Ninth Circuits
recognize as clearly established the rule that even if
a detainee’s conduct contributes something to the
length of a detention, the Constitution prohibits a
further detention that was neither caused by the
detainee’s actions nor the result of a reasonably
diligent investigation. See Liberal v. Estrada, 632
F.3d 1064, 1081 (9th Cir. 2011) (“But even taking
into account the inevitable investigatory delay
caused by that [detainee] behavior, the length of
Plaintiff’s detention was still unreasonable,” because
the officers “were not diligently pursuing a means of
investigation.”); Karnes v. Skrutski, 62 F.3d 485, 49697 (3d Cir. 1995) (holding delay was “the result
primarily of the [officers’] dilatory pursuit of their
investigation” even when the detainee became
“argumentative and difficult”).
The conflict created by the Fifth Circuit’s
relaxation of the diligence requirement extends to the
Eighth Circuit as well. That court has recognized

10
since 2008 that the duration of a detention is not
made reasonable simply because “some of the
detention’s duration is attributable to” the detainee.
Seymour v. City of Des Moines, 519 F.3d 790, 797 n.5
(8th Cir. 2008).
Unable to explain away the diametric opposition
between the results reached in these cases and the
Fifth Circuit’s decision (BIO 12), the government
instead insists that the cases employed the same
basic reasoning, based on the Fifth Circuit’s
recitation of the rule that the permissible duration of
a checkpoint detention is “the time reasonably
necessary to determine *** citizenship status.” Pet.
App. 6a. But reciting the standard is not the same as
faithfully applying it.
And the Fifth Circuit’s
decision makes no reference to Sharpe or its holding
that an agent’s diligence is a factor to be assessed in
determining whether a detention goes on longer than
“reasonably necessary.” More importantly, the Fifth
Circuit’s decision is best understood as creating an
exception to that diligence requirement for officers
faced with “unorthodox” or “atypical” detainee
behavior.
No other circuit has endorsed this
approach, which allows officers’ personal reactions to
a motorist’s non-criminal behavior to trump Fourth
Amendment rights.
II. THE DECISION BELOW WAS BLATANTLY
WRONG.
No reasonable officer could believe that
motorists can be held for more than 30 minutes for
suspicionless inquiries that range far afield from
immigration status, even while agents hold passports
in their hands. Nor could any reasonable officer
believe, even “mistaken[ly],” Pet. App. 8a, that the

11
Fourth Amendment would condone his failure to
examine that evidence of citizenship simply because
he believed that the detainee’s “unorthodox” or
“atypical” behavior marginally extended the first few
minutes of the detention.
The Fifth Circuit’s approval of such extended
suspicionless detentions eviscerates time-honored
limits on the permissible scope of checkpoint
detentions, which provide the “principal protection of
Fourth Amendment rights at checkpoints,” MartinezFuerte, 428 U.S. at 566-567. And it undermines the
“programmatic purpose” that distinguishes these
suspicionless detentions from a “general interest in
crime control,” even though that distinction is the
only reason these routine intrusions on motorists’
liberty are permitted in the first place. City of
Indianapolis v. Edmond, 531 U.S. 32, 44, 46 (2000).
If left standing, the Fifth Circuit’s erosion of
clearly established Fourth Amendment duration,
scope, and diligence restrictions will encourage
dilatory, even downright abusive, behavior from
agents. Such troubling behavior, as amici have
shown, and the government does not deny, is already
a huge problem at immigration checkpoints. See Pet.
32-34; Br. of Tex. Civil Rights Project & the Nat’l
Immigration Project of the Nat’l Lawyers Guild as
Amici Curiae 14-17. Simply put, the Fifth Circuit’s
new rule diminishes the liberty of the millions who
travel through checkpoints in Texas every year. And
the implications of the Fifth Circuit’s evisceration of
Fourth Amendment protections for every motorist
driving through Texas defeat the government’s
attempts to transform this case into a “one-off”

12
circumstance simply through ritual incantation of the
words “unusual” (BIO 2, 7, 10, 12), “unorthodox”
(BIO 2, 7, 10), and “uncooperative” (BIO 2, 7, 12).
Indeed, the Border Patrol itself believes that socalled “uncooperative” motorists—including those
raising legitimate concerns like “why do you want to
search my vehicle?”—are common enough to justify
special training for agents with the stated aim of
helping them “stay off YouTube.” See Am. Civil
Liberties Union of Ariz., Record of Abuse:
Lawlessness and Impunity in Border Patrol’s Interior
Enforcement Operations, Oct. 2015, at 12 (quoting
and displaying a page from a Border Patrol document
titled “Guidance on Uncooperative Motorists”).3
Allowing the Fifth Circuit’s rule to survive will
permit detentions begun without any suspicion of
criminal wrongdoing to continue, essentially
indefinitely. For such detentions, there is no need for
checkpoint agents to ever develop suspicion of
criminal activity. Rather, the agents are given free
license to explore their concerns about a detainee’s
“atypical” or “unorthodox” behavior, “atypicalities”
that are assessed entirely according to the agent’s
own arbitrary and idiosyncratic standards.
The Fifth Circuit’s rule creates perverse
incentives for law enforcement, and provides a
detailed roadmap for agents to use to justify
extending the length of checkpoint detentions, even
though this Court has repeatedly emphasized that
3
Available
at
http://www.acluaz.org/sites/default/files/
documents/Record_of_Abuse_101515_0.pdf.

13
strict time limits are essential for these suspicionless
stops. This rule also diminishes the coverage of
Fourth Amendment protections in an area of Fourth
Amendment law that already stretches the bounds of
reasonableness, where people are seized and held
without a warrant, and without suspicion of criminal
wrongdoing, and accordingly where concerns of
abridgement and abuse are at their zenith.
This Court has held that strict observance of
“appropriate limitations on the scope” of immigration
checkpoint detentions is the only thing that enables
these detentions to comport with Fourth Amendment
rights. Martinez-Fuerte, 428 U.S. at 567. This
Court’s intervention is now needed to ensure that
these strict limits continue to be enforced.
III. AT A MINIMUM, THIS CASE SHOULD BE
REMANDED IN LIGHT OF RODRIGUEZ.
As the Petition explains, Pet. 35-38, and the
government does not dispute, the decision in
Rodriguez is an “intervening development” that
reveals a “reasonable probability that the decision
below rests upon a premise that the lower court
would reject if given the opportunity for further
consideration.” See Lawrence v. Chater, 516 U.S.
163, 167 (1996) (per curiam). In Rodriguez, the
Court explained established law holding that
conducting an unrelated inquiry cannot “prolong[]—
i.e., add[] time to—the stop.” 135 S. Ct. at 1616. In
this case, the Fifth Circuit permitted an unrelated
inquiry to Rynearson’s commanding officer to add
time to the stop. Accordingly, a grant, vacate, and
remand order is appropriate.

14
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Ruthanne M. Deutsch
Washington, DC

J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, TX 75206
(469) 600-9455
ccecere@cecerepc.com

Counsel for Petitioner
March 2, 2016