Rynearson Request For en Banc Review Before Fifth Circuit

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Document: 00513001855
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Date Filed: 04/12/2015
No. 13-51114
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
RICHARD RYNEARSON,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; AGENT LANDS, Border Patrol Agent,
Individually; RAUL PEREZ, Border Patrol Agent, Individually
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, DISTRICT COURT NO. 2:12-CV-24
APPELLANTS PETITION FOR REHEARING EN BANC

JAVIER N. MALDONADO
(attorney-in-charge)
Texas Bar No. 00794216
Law Office of Javier N. Maldonado, P.C.
8918 Tesoro Dr., Ste. 575
San Antonio, TX 78217
Phone: 210-277-1603
Fax: 210-587-4001
Attorney for Appellant
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CERTIFICATE OF INTERESTED PARTIES

No. 13-51114, Rynearson v. United States of America.
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this court may evaluate possible disqualification or recusal.
Richard Rynearson, Plaintiff-Appellant
Javier N. Maldonado, Counsel to Plaintiff-Appellant
Justin K. Lands, Defendant-Appellee
Raul Perez, Defendant-Appellee
Harold E. Brown, Counsel to Defendants-Appellees
Steve Frank, Counsel to Defendants-Appellees
s/Javier N. Maldonado
Attorney of Record for Richard Rynearson
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FED. R. APP. P. 35(b) STATEMENT

This appeal involves two questions of exceptional importance regarding the
constitutional limits on the more than thirty permanent checkpoints operated by the
Border Patrol within Texas, miles away from the border. In particular, this case
addresses whether the Border Patrol is constitutionally authorized to detain an
individual at an interior immigration checkpoint for more than 20 minutes after he
provides his name, citizenship status, and offers valid U.S. passports, in order to
make irrelevant phone calls to the individuals employer. The panel majoritys
conclusion that a reasonable officer would believe he could conduct such a
detention conflicts with decisions of the Supreme Court and this Circuit, and
consideration by the full court is necessary to secure and maintain uniformity of
this Courts decisions. The two questions presented are:
1.
Does an individual have a clearly established right during a
suspicionless immigration checkpoint stop to be detained no longer than necessary

for agents to ask a brief question or two about citizenship status or request
documents evidencing a right to be in the United States?
2.
Does an individual have a clearly established right to be released from
a suspicionless immigration detention once his citizenship is determined?

The panel majoritys decision announces a new legal rule permitting an
extended detention at an immigration checkpoint beyond the time reasonably
ii
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necessary to make a brief immigration inquiry, without any reasonable suspicion of

criminal activity, on the ground that an individual was unorthodox because he
generally asserted his right against unlawful searches and seizures, slip op. at 6.
That rule enlarges the authority of border patrol agents to conduct
suspicionless detentions at immigration checkpoints beyond what the Constitution
permits. As the Supreme Court and this Court have made clear for decades, the
Fourth Amendment permits a suspicionless seizure at an interior immigration
checkpoint only for the time reasonably necessary to ask a question or two
regarding immigration status or to request production of a relevant document. See
United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. MachucaBarrera, 261 F.3d 425 (5th Cir. 2001); United States v. Portillo-Aguierre, 311 F.3d
647 (5th Cir. 2002). The panel majoritys decision plainly conflicts with these
holdings. But it also announces an unprecedented new basis for extending a
suspicionless seizure: the so-called unorthodox tactic of generally asserting rights
against unlawful searches and seizures while providing all relevant information.
En banc review is necessary to conform the panels decision to this Courts
precedents and to fundamental principles regarding the scope of a permissible
suspicionless detention.
iii
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES ......................................................... i
FED. R. APP. P. 35(b) STATEMENT ..................................................................... ii
TABLE OF AUTHORITIES .....................................................................................v
STATEMENT OF ISSUES MERITING EN BANC CONSIDERATION ..............1
STATEMENT OF FACTS AND COURSE OF PROCEEDINGS ...........................1
ARGUMENT .............................................................................................................7
I.
THE MAJORITYS DECISION PERMITTING A DETENTION LONGER

THAN REASONABLY NECESSARY TO INQUIRE INTO IMMIGRATION
STATUS CONFLICTS WITH SUPREME COURT AND FIFTH CIRCUIT
PRECEDENT ......................................................................................................7
II. THE MAJORITYS DECISION CONFLICTS WITH CLEARLY

ESTABLISHED FIFTH CIRCUIT LAW HOLDING THAT A DETENTION
MUST END ONCE CITIZENSHIP IS DETERMINED .................................14
CONCLUSION ........................................................................................................15
CERTIFICATE OF SERVICE .................................................................................16
ADDENDUM
Panel Opinion
iv
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TABLE OF AUTHORITIES
Page(s)
CASES
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) .............................................................................................. 5
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) .......................................................................................... 1, 13
Club Retro, LLC v. Hilton,
568 F.3d 181 (5th Cir. 2009) ................................................................................ 2
Hiibel v. Sixth Judicial Dist. Ct. of Nev.,
542 U.S. 177 (2004) ............................................................................................ 13
Pearson v. Callhan,
555 U.S. 223 (2009) .............................................................................................. 2
Terry v. Ohio,
392 U.S. 1 (1968) ................................................................................................ 10
Tolan v. Cotton,
134 S. Ct. 1861 (2014) (per curiam) ................................................................... 14
United States v. Brignoni-Ponce,
422 U.S. 873 (1975) ............................................................................................ 12
United States v. Ellis,
330 F.3d 667 (5th Cir. 2003) ........................................................................14, 15
United States v. Machuca-Barrera,
261 F.3d 425 (5th Cir. 2001) .......................................................................passim
United States v. Martinez-Fuerte,
428 U.S. 543 (1976) ..............................................................................1, 7, 12, 13
United States v. Portillo-Aguirre,
311 F.3d 647 (5th Cir. 2002) .......................................................................passim
CONSTITUTION
U.S. Const., Amendment 4 ...............................................................................passim
v
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STATEMENT OF ISSUES MERITING EN BANC CONSIDERATION

1.
Does an individual have a clearly established right during a
suspicionless immigration checkpoint stop to be detained no longer than necessary

for agents to ask a brief question or two about citizenship status or request
documents evidencing a right to be in the United States?
2.
Does an individual have a clearly established right to be released from
a suspicionless immigration detention once his citizenship is determined?

STATEMENT OF FACTS AND COURSE OF PROCEEDINGS
1.
The Fourth Amendment guarantees the right of the people to be free
from unreasonable searches and seizures. U.S. Const., Amend. 4. A search or

seizure is ordinarily unreasonable in the absence of individualized suspicion of
wrongdoing. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The
Supreme Court has approved a quite limited exception to this rule for brief
questioning routinely conducted at permanent checkpoints related to immigration
status. United States v. Martinez-Fuerte, 428 U.S. 543, 562, 566 (1976).
A suspicionless checkpoint detention violates the Fourth Amendment if it
lasts longer than the time reasonably necessary to determine the citizenship status
of the persons stopped. United States v. Machuca-Barrera, 261 F.3d 425, 433
(5th Cir. 2001). This occurs when agents ask questions outside the scope of the
stop that extend the duration of the stop. Id. at 432. Only activities related to
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determining the citizenship status of persons passing through the checkpoint are
within the scope of the stop. Id. at 433.
A stop of a couple of minutes is within the permissible duration of an
immigration checkpoint stop. Id. at 435. [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, United States v. PortilloAguirre, 311 F.3d 647, 652 (5th Cir. 2002), or reasonable suspicion, MachucaBarrera, 261 F.3d at 434. Even a three-minute extension beyond the permissible
duration violates the Fourth Amendment. Portillo-Aguirre, 311 F.3d at 654.
2.
A law enforcement officer is not entitled to qualified immunity if 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.
Callhan, 555 U.S. 223, 232 (2009). A right is clearly established so long as an
officer has fair warning that his conduct was unconstitutional. Club Retro, LLC
v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). The law can be clearly established
despite notable factual distinctions between the precedents relied on and the case
then before the Court, so long as the prior decisions gave reasonable warning that
the conduct then at issue violated constitutional rights. Id.
3.
Plaintiff Richard Rynearson is an officer in the United States Air
Force who was formerly stationed at Laughlin Air Force Base, near Del Rio,
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Texas. See slip op. at 2; ROA.352. During his time at Laughlin, Rynearson
traveled frequently to San Antonio and was therefore often compelled to stop at the
Border Patrols interior checkpoint near Uvalde, Texas. ROA.352.
In March 2010, Rynearson was detained at the Uvalde checkpoint for 34
minutes. Slip op. at 3. The detention was recorded on video. Id. at 2. Per Agent
Lands declaration, Agent Lands requested but did not direct that Rynearson exit
his vehicle, and when Rynearson declined the request, Agent Lands decided to
complete the immigration inspection with Rynearson in his vehicle, ROA.274,
which is how checkpoint inquiries are ordinarily accomplished.
When Rynearson was asked to display his identification, he placed his
drivers license and military identification on the window glass where they could
be read from outside the vehicle. Slip op. at 2. Although the car window was
rolled up or partially rolled up through most of the detention, Rynearson and Agent
Lands had a discussion in which Rynearson answered every question that he was
asked. Id. at 2-3; ROA.336-ROA.342. However, Rynearson was not asked any
questions about his citizenship or immigration status until 11 minutes into the
detention.
Slip op. at 10 (Elrod, J., dissenting). At that time, Agent Lands
informed Rynearson that the identification documents he had displayed dont

mean anything, and Rynearson immediately offered to provide passports. Id.
Agent Lands ignored the offer and, for the first time, asked Rynearson whether he
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was a U.S. citizen.
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Rynearson answered affirmatively, but he was not
permitted to leave and Agent Lands did not ask to see his passports. Id.
Seven minutes later, almost 18 minutes into the detention, Agent Perez asked
for Rynearsons passports, and Rynearson instantly surrendered them. Slip op. at
3; id. at 10 (Elrod, J., dissenting). Agent Perez stated that he would review
Rynearsons passports and Rynearson would be on his way. ROA.343. Thereafter,
however, Agent Perez asked Rynearson several questions about his military
assignment, which Rynearson answered, but Rynearson declined to identify his
commanding officer. Slip op. at 3; id. at 10 (Elrod, J., dissenting). Agent Perez
agreed that Rynearson did not have to answer that question and left with
Rynearsons passports. ROA.344. Three minutes later, Agent Perez returned to
Rynearsons vehicle and asked him to again confirm his assigned base. ROA.344.
Rynearson confirmed the base. ROA.344. Agent Perez stated his intent to call the
Provost Marshal and CID and then left. Slip op. at 10 (Elrod, J., dissenting).
Agent Perez instructed Agent Lands to release Rynearson about 13 minutes
thereafter, ROA.344-ROA.345, which was about 17 minutes after he first took
possession of Rynearsons passports and 23 minutes after Rynearson had affirmed
his citizenship and offered his passports to Agent Lands. See slip op. at 3; id. at
10-11 (Elrod, J., dissenting). Agent Perez declared that he determined Rynearsons
citizenship by examining the passports. ROA.266. He later declared that he had
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spent 10 to 15 minutes of the detention making calls to the Air Force and speaking
with Security Forces regarding Rynearsons military status and describing the
checkpoint encounter. See ROA.279.
4.
Rynearson brought Fourth Amendment claims against the border
patrol agents pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The district court granted the agents pre-answer,
pre-discovery motion for summary judgment on the ground that Rynearson had not
established a constitutional violation. ROA.482. With respect to the 10 to 15minute period that Agent Perez took to call the Air Force, the district court held
this could not have unlawfully extended the detention because only continued
questioning after the confirmation of citizenship impermissibly lengthens a
stop. ROA.487. The district court denied Rynearsons request for discovery
related to whether Agent Perez had, in fact, completed his determination of
immigration status prior to calling the Air Force. ROA.297-ROA.298.
5.
A divided panel of this Court affirmed. Focusing on the fact that
Rynearson generally asserted his right against unlawful searches and seizures,
the majority concluded that the agents had difficulty determining how to respond
to his unorthodox tactics. Slip op. at 6. The majority did not address whether
Rynearson was detained longer than necessary for the agents to ask a brief question
or two regarding immigration or to request production of relevant documents.
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Rather, the majority held that there was no clearly established law permitting
Rynearson to exercise the constitutional rights he chose to stand on. Slip op. at
6-7. The majority thus declined to decide whether the extended detention violated
the Constitution. Id. at 7. Instead, the majority held that the agents at worst,
made reasonable but mistaken judgments. Id.
6.
Judge Elrod dissented. She noted that Rynearson asserted his rights
while also providing the documentation needed to prove his citizenship status,
and that even the majority recognized that he began producing documentation as
early as two minutes into the detention. Slip op. at 9-10 (Elrod, J., dissenting).
However, the record established that Agents Lands and Perez did not
expeditiously investigate Rynearsons citizenship status. Id. at 10. For example,
Agent Lands refused to examine [Rynearsons] 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
Rynearsons employer. Id. at 9. Judge Elrod concluded that Agents Lands and
Perez failed to demonstrate entitlement to qualified immunity with respect to the
twenty-three minutes of detention that followed Rynearsons offer to show Agent
Lands his passports. Id. at 14. [N]o reasonable officerin light of MartinezFuerte, Machuca-Barrera, and Portillo-Aguirrewould believe that he was
entitled to take an additional twenty-three minutes while ignoring the passports and
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placing phone calls to Rynearsons employer. Id. at 14.

ARGUMENT
I.
THE MAJORITYS DECISION PERMITTING A DETENTION

LONGER THAN REASONABLY NECESSARY TO INQUIRE INTO
IMMIGRATION STATUS CONFLICTS WITH SUPREME COURT
AND FIFTH CIRCUIT PRECEDENT
1.
Any reasonable border patrol agent would know that an individual
could not be detained longer than a brief question or two or a request for
documents evidencing a right to be in the United States. Portillo-Aguirre, 311
F.3d at 652. This Courts precedent implements the restrictions articulated by the
Supreme Court in Martinez-Fuerte. See 428 U.S. at 558 (holding that the Fourth
Amendment permits only a brief detention involving a brief question or two
and possibly the production of a document evidencing a right to be in the United
States). Rynearson was detained far longer than a brief question or two or a
request for documents. Indeed, he was detained for 23 minutes after he had
answered the one question asked about his citizenship (and many more questions
besides) and after he had offered two valid U.S. passports, including 17 minutes
after Rynearson had immediately produced his passports upon request.
No reasonable border patrol agent could believe that these 23 minutes did
not exceed the time reasonably necessary to determine the citizenship status of the
persons stopped.
Machuca-Barrera, 261 F.3d at 433.
After Rynearsons
affirmation of citizenship and offer of passports, the only task that could
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conceivably be left for determining citizenship would be to authenticate the

passports. See slip op. at 14 (Elrod, J., dissenting). Agent Lands declared that
such a record check usually takes a couple of minutes. ROA.259. And this
Court has held unlawful a detention that was less than half as long as 23 minutes,
even though it involved the immigration inspections of numerous individuals on a
bus. See Portillo-Aguirre, 311 F.3d at 656 (total detention of six to ten minutes
unlawful).
The majority does not dispute that 23 minutes was longer than
necessary for a brief question or two or a request for documents evidencing a

right to be in the United States. Id. at 652. Its holding that the detention was
nonetheless permissible therefore conflicts with Martinez-Fuerte, MachucaBarrera, and Portillo-Aguirre.
2.
Moreover, it is undisputed that the agents spent most of those 23
minutes pursuing non-immigration matters. For six minutes, the agents ignored the
offer of passports and conducted no inquiry. Thereafter, Rynearson surrendered
the passports immediately upon the request of Agent Perez. Agent Perez held the
passports for 17 minutes. He did use some few minutes to examine them, from
which he determined that Rynearson was a citizen and there was no reason to
detain him further. ROA.266. But he also admitted that he spent 10 to 15
minutes calling Rynearsons employer to inform[] [the base] of the encounter.
ROA.279. It is thus undisputed that Agent Perez wasted ten to fifteen minutes
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placing unnecessary phone calls. Slip op. at 13 (Elrod, J., dissenting). These
inquiries had nothing to do with immigration status.
The majority excused the extension of the detention to pursue nonimmigration-related matters on the ground that Rynearson generally asserted his
right against unlawful searches and seizures while the agents had difficulty
determining how to respond to his unorthodox tactics.
Slip op. at 6. This
reasoning is not only in direct conflict with binding decisions of this Court. It is
also an unprecedented extension of suspicionless detention authority beyond what
the Fourth Amendment permits.
First, following this Courts decision in Machuca-Barrera, no reasonable
officer could believe that it was permissible to extend Rynearsons detention in
order to make calls unrelated to determining [Rynearsons] citizenship status,
because this Courts precedent clearly establishes that inquiries outside the scope
of the stop violate the Fourth Amendment when they extend the duration of the
stop. Machuca-Barrera, 261 F.3d at 432. Inquiries into non-immigration matters
extended the detention of the stop by at least 10 minutes. The majoritys holding
that a reasonable officer would believe it was permissible to extend a detention for
a non-immigration-related purpose, slip op. at 5-6 (holding it was permissible for
the agents to call Rynearsons military base to inquire into his military status),
flatly contradicts this Courts holding in Machuca-Barrera that without reasonable
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suspicion, border patrol agents may not extend an immigration detention to inquire
into non-immigration matters. 261 F.3d at 432.1
Machuca-Barrera plainly does not permit agents to extend a detention to
make non-immigration inquiries if confronted with assertions of rights. As Judge
Elrod noted, asserting ones rights while providing all necessary information is
not an unorthodox tactic[].
venerable American tradition.
Slip op. at 10 (Elrod, J., dissenting).

Id.
It is a
It is certainly not evidence of criminal
wrongdoing. And this Court expressly held in Machuca-Barrera that inquiries that
extend an immigration detention are permissible only if they are based on
reasonable suspicion of criminal wrongdoing: [A]n 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. Machuca-Barrera, 261 F.3d at 434. The phrase
if and only if clearly and unambiguously precludes any other exception allowing
a detention to be extended for unrelated inquiries on account of so-called
unorthodox tactics. Either the majoritys holding must recede or MachucaBarreras must, but the two cannot be harmonized.
Second, the majoritys extended-detention-for-unorthodoxy rule is a
1
All three members of the panel agreed that the detention could not be upheld on the basis of
reasonable suspicion. See slip op. at 6 (holding that Terry v. Ohio, 392 U.S. 1 (1968) is not
applicable); id. at 13 n.7 (Elrod, J., dissenting) (At oral argument, the government correctly
conceded that this is not a Terry case.).
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breathtaking and unconstitutional expansion of the Border Patrols authority to

conduct suspicionless detentions.
The majoritys decision would permit a
detention for more than 20 minutes after an individual affirmed his citizenship and
offered two passports whenever a border patrol agent considered an individual to
be unorthodox or an unusually uncooperative person. Slip op. at 6-7. By
uncooperative, the majority appears to refer to Rynearson keeping his window
almost completely closed, declining the request to exit the vehicle, and assert[ing]
his right against unlawful searches and seizures. Id. at 2-3, 6. But the majority
does not dispute that notwithstanding this purported unorthodoxy, Rynearson
immediately provided all requested information and documentation related to his
immigration statusand then some. See slip op. at 9-10 (Elrod, J., dissenting).
Indeed, in the final 23 minutes of the seizure, Rynearson offered his
passports and surrendered them immediately upon request; Rynearson engaged in
no discussions regarding his rights or the scope of the stop except in declining to
answer the name of his commanding officer; and Agent Perez made no request for
Rynearson to exit the vehicle and asked him only to roll the window down enough
to deliver the passports, which was already done.2 ROA.342-ROA.345. Agent
Perez had no difficulty determining how to respond to Rynearsons passports
2
The majority incorrectly states that after Agent Perez arrived, Rynearson still refused to roll
down his window or exit the vehicle. Slip op. at 3. The record establishes that Agent Perez
never asked Rynearson to exit the vehicle. With respect to the window, he asked Rynearson
Can you roll your window down so I can get your passport, to which Rynearson replied Sure
and handed him the passports through a window that was already partially open. ROA.342.
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he stated that he would review them and Rynearson would be on his way.
ROA.343. Instead the agents detained Rynearson for at least 15 more minutes
while making irrelevant calls to Rynearsons employer.
The Fourth Amendment simply does not permit the Border Patrol to extend
a suspicionless detention on the basis of unorthodox assertions of rights when, as
here, an individual provides all information necessary to determine immigration
status. Even [a]ccording to the Government, [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.
United States v.
Brignoni-Ponce, 422 U.S. 873, 880 (1975); see Martinez-Fuerte, 428 U.S. at 558.
Rynearson did that, and more. [A]ny further detentionany further detention
must be based on consent or probable cause, Martinez-Fuerte, 428 U.S. at 567, or
an independent basis for a seizure such as reasonable suspicion, Machuca-Barrera,
261 F.3d at 434. This Courts precedents do not define the scope of a permissible
seizure on the basis of its perceptions of the plaintiffs actions. See slip op. at 15
(Elrod, J., dissenting). Rather, the scope of a permissible suspicionless checkpoint
detention is determined by the time necessary for the agents to ask a brief question
or two or request a document. Asserting the right against unlawful seizures, even
if unusual, is no basis for a suspicionless detentionuntil the panel majoritys
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decision.3
*****
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.
Slip op. at 13 (Elrod, J. dissenting). One can 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). But the Supreme Court having approved a narrow exception to the
individualized-suspicion rule for brief questioning, the principal protection of
Fourth Amendment rights at checkpoints lies in appropriate limitations on the
scope of the stop.
Martinez-Fuerte, 428 U.S. at 566, 567.
The majoritys
decision eviscerates those limits and approves a new basis for extending a
suspicionless detention in conflict with decisions of the Supreme Court and this
Court. En banc rehearing is necessary to resolve this conflict.
Because Rynearson provided the information necessary to prove his citizenship status
throughout the detention, the question whether Rynearson actually had some limited Fourth
Amendment right to refuse to cooperate, slip op. at 7, is irrelevant to the questions presented.
The Fourth Amendment does not impose obligations on the citizen, Hiibel v. Sixth Judicial
Dist. Ct. of Nev., 542 U.S. 177, 187 (2004). This fundamental principle applies to checkpoint
seizures like any other detention. Regardless, any question regarding a non-cooperation right has
no relevance to the permissible length of detention after Rynearson had offered two passports.
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II.
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THE MAJORITYS DECISION CONFLICTS WITH CLEARLY

ESTABLISHED FIFTH CIRCUIT LAW HOLDING THAT A
DETENTION MUST END ONCE CITIZENSHIP IS DETERMINED
The majoritys holding transgresses this Courts precedent in a second way.
It is clearly established that once an agent has completed his immigration inquiry
at an immigration checkpoint, he must end his seizure of the [vehicle] unless he
has reasonable suspicion of wrongdoing. United States v. Ellis, 330 F.3d 667,
680 (5th Cir. 2003); see also Portillo-Aguirre, 311 F.3d at 656. Even a delay of
an additional one to two minutes after completion of the immigration inspection
violates the Fourth Amendment. Ellis, 330 F.3d at 681. No objectively reasonable
agent could believe that he could detain an individual for 10 to 15 minutes after
verifying his citizenship status from a passport.
Yet that is precisely what
happened here when the record is viewed in the light most favorable to Rynearson.
See Tolan v. Cotton, 134 S. Ct. 1861, 1867 (2014) (per curiam).
In his first declaration, Agent Perez stated that he scrutinized Rynearsons
passport and determined his citizenship status. See ROA.264-ROA.267. In his
second declaration, Agent Perez described his calls to the Air Force.
ROA.278-ROA.279.
See
Neither declaration discusses the timing of these two
activities in relation to one another, and Rynearson was denied any discovery on
this point. It is illogical to infer that these investigations took place at the same
time, and the video depicts two separate absences from Rynearsons car. The first
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absence takes about three minutes after Agent Perez states that he would review
Rynearsons passport and send him on his way. ROA.344. Agent Perez then
returned and said he was going to call the military. ROA.344. He was then absent
from the car a second time, for a much longer period of time. ROA.344-ROA.345.
Viewed in the light most favorable to Rynearson, this sequence shows that
Agent Perez left Rynearsons vehicle, conducted his immigration-related review of
the passports, and concluded his citizenship inquiry. He then held Rynearson for
more than 10 minutes solely for the purpose of calling his employer. That violates
clearly established law. Portillo-Aguirre, 311 F.3d at 657; Ellis, 330 F.3d at 680.
By approving the detention, the majority necessarily concluded that it was lawful
even if Agent Perez extended the detention after completing his immigration
inquiry. That conclusion conflicts with Ellis and Portillo-Aguirre.
CONCLUSION
For the foregoing reasons, the Court should grant rehearing.
April 10, 2015
Respectfully submitted,
Javier N. Maldonado (attorney-in-charge)
Texas Bar No. 00794216
Law Office of Javier N. Maldonado, P.C.
8918 Tesoro Dr., Ste. 575
San Antonio, TX 78217
Phone: 210-277-1603
Fax: 210-587-4001
Attorney for Appellant Richard Rynearson
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CERTIFICATE OF SERVICE
I hereby certify that, on April 12, 2015, I served the foregoing brief upon the
following counsel of record by filing a copy of the document with the Clerk
through the Courts electronic docketing system:
Steve I. Frank
U.S. DEPARTMENT OF JUSTICE
Civil Division, Appellate Staff
Room 7245
950 Pennsylvania Avenue NW
Washington, DC 20530-0001
steven.frank@usdoj.gov
Harold Edwin Brown, Jr.
U.S. ATTORNEYS OFFICE
Western District of Texas
601 N.W. Loop 410, Suite 600
San Antonio, TX 78216-5512
harold.brown@usdoj.gov
Javier N. Maldonado
16

Rynearson Request For en Banc Review Before Fifth Circuit

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Rynearson Request For en Banc Review Before Fifth Circuit

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Case: 13-51114

Date Filed: 04/12/2015

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

APPELLANTS PETITION FOR REHEARING EN BANC

Date Filed: 04/12/2015

Date Filed: 04/12/2015

CERTIFICATE OF INTERESTED PARTIES

Date Filed: 04/12/2015

FED. R. APP. P. 35(b) STATEMENT

Does an individual have a clearly established right during a

suspicionless immigration checkpoint stop to be detained no longer than necessary

Does an individual have a clearly established right to be released from

a suspicionless immigration detention once his citizenship is determined?

Date Filed: 04/12/2015

necessary to make a brief immigration inquiry, without any reasonable suspicion of

Date Filed: 04/12/2015

THE MAJORITYS DECISION PERMITTING A DETENTION LONGER

II. THE MAJORITYS DECISION CONFLICTS WITH CLEARLY

Date Filed: 04/12/2015

Date Filed: 04/12/2015

Date Filed: 04/12/2015

STATEMENT OF ISSUES MERITING EN BANC CONSIDERATION

Does an individual have a clearly established right during a

suspicionless immigration checkpoint stop to be detained no longer than necessary

Does an individual have a clearly established right to be released from

a suspicionless immigration detention once his citizenship is determined?

The Fourth Amendment guarantees the right of the people to be free

from unreasonable searches and seizures. U.S. Const., Amend. 4. A search or

Date Filed: 04/12/2015

A law enforcement officer is not entitled to qualified immunity if the

Plaintiff Richard Rynearson is an officer in the United States Air

Date Filed: 04/12/2015

Slip op. at 10 (Elrod, J., dissenting). At that time, Agent Lands

informed Rynearson that the identification documents he had displayed dont

was a U.S. citizen.

Date Filed: 04/12/2015

Rynearson answered affirmatively, but he was not

Date Filed: 04/12/2015

Rynearson brought Fourth Amendment claims against the border

A divided panel of this Court affirmed. Focusing on the fact that

Date Filed: 04/12/2015

Date Filed: 04/12/2015

placing phone calls to Rynearsons employer. Id. at 14.

THE MAJORITYS DECISION PERMITTING A DETENTION

Any reasonable border patrol agent would know that an individual

Machuca-Barrera, 261 F.3d at 433.

Date Filed: 04/12/2015

conceivably be left for determining citizenship would be to authenticate the

necessary for a brief question or two or a request for documents evidencing a

Moreover, it is undisputed that the agents spent most of those 23

Date Filed: 04/12/2015

Slip op. at 6. This

Date Filed: 04/12/2015

Slip op. at 10 (Elrod, J., dissenting).

It is certainly not evidence of criminal

Date Filed: 04/12/2015

breathtaking and unconstitutional expansion of the Border Patrols authority to

The majoritys decision would permit a

Date Filed: 04/12/2015

Date Filed: 04/12/2015

Martinez-Fuerte, 428 U.S. at 566, 567.

Date Filed: 04/12/2015

THE MAJORITYS DECISION CONFLICTS WITH CLEARLY