Carlos Nerio, II v. Derek Evans

Case: 19-50793 Document: 00515558935 Page: 1 Date Filed: 09/10/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

September 10, 2020

No. 19-50793 Lyle W. Cayce

Clerk

Carlos Henry Nerio II,

Plaintiff—Appellant,

versus

Derek Evans, Peace Officer at the Texas Department of

Public Safety, in his individual capacity; Amy King, CID

Special Agent by the Texas Department of Public

Safety, in her individual capacity,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:17-CV-37

Before King, Graves, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

This is a case of mistaken identity. Carlos Nerio argues that narcotics

officers violated the Constitution when they mistakenly arrested him instead

of his half-brother—also named Carlos Nerio. The district court granted

qualified immunity to the officers. We affirm.

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No. 19-50793

I.

Narcotics officers from the Texas Department of Public Safety

(“DPS”) used court-authorized pen registers and wiretaps to collect

evidence of a meth deal in Austin. The meth purchaser’s phone number was

registered to Carlos Nerio. A DPS surveillance unit also witnessed a meth

purchase. The purchaser was driving a silver Chevrolet pickup truck with a

license plate that also was registered to Carlos Nerio.

DPS officers attempted to use Nerio’s phone and truck to find his

address. Officers traced Nerio’s phone number to 7112 Ed Bluestein

Boulevard. That’s a Cricket Wireless store—not Nerio’s residence. Officers

traced the Chevy truck to a house on Tapo Lane in Austin. They also

confirmed that Carlos Nerio lived at the Tapo Lane address.

The problem is that the Carlos Nerio who purchased the Cricket

phone and lived on Tapo Lane is not the Appellant Carlos Nerio. The two

Nerios are half-brothers; they share a father and (obviously) names. The

record abounds with mistakes over which Nerio is which. The Appellant

went by at least three different variations of “Carlos Nerio.” And the

cognomen confusion was so severe that Appellant Nerio’s own lawyer

misidentified him in an affidavit. For our part, we refer to the two Nerios as

“Appellant Nerio” and “Tapo Lane Nerio.” 1

One of the officers supervising the meth investigation, Lieutenant

Leggett, asked for driver’s license information for the Carlos Nerio who

1

The record identifies Tapo Lane Nerio as “Carlos Henry Nerio, Jr.,” whereas

Appellant Nerio gives his name as “Carlos Henry Nerio II” in his initial complaint and in

his filings in this court. During one of his depositions, however, Appellant Nerio said he

sometimes goes by Carlos Henry Nerio, Jr. Finally, Appellant Nerio signed an affidavit in

2019 giving his name as “Carlos Henry Nerio, III.” During oral argument, Appellant

Nerio’s counsel confirmed that he misidentified his client in the affidavit.

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drove the silver Chevy truck to the meth deal—that is, the Tapo Lane Nerio.

Then, for reasons unrevealed in the record, some unidentified DPS official

found and produced license information for Appellant Nerio. Leggett sent

Appellant Nerio’s license information to Officer King. King showed

Appellant Nerio’s license photo to the DPS surveillance unit. And the

surveillance officers confirmed that Appellant Nerio was present at the drug

deal. But at least one member of the surveillance unit, Officer Evans,

eventually learned that the driver’s license database contained information

for two different individuals named Carlos Nerio.

King met with an assistant DA, and they decided to seek an arrest

warrant for Appellant Nerio. King then tasked Evans with drafting an

affidavit and applying for the warrant. Evans dutifully did so. His affidavit

described the extensive investigation that led to Appellant Nerio’s

identification, though it did not mention that two Nerios appeared in the

driver’s license database. A magistrate authorized the warrant.

DPS officers then executed the warrant and arrested Appellant Nerio.

He was charged with conspiracy to commit felony manufacturing/delivery of

a controlled substance. Local news covered the arrest. As a result, Appellant

Nerio lost his job. Eventually, however, he convinced the local DA to drop

the charges against him.

Appellant Nerio then sued Evans and King under 42 U.S.C. § 1983.

He framed his complaint in terms of false arrest and false imprisonment and

claimed that the pair of officers violated his rights under the Fourth and

Fourteenth Amendments. The officers moved to dismiss the suit. The

district court dismissed the Fourteenth Amendment claims but denied the

rest of the officers’ motion to dismiss.

Next, the officers moved for summary judgment. The district court

referred the matter to a magistrate. The magistrate determined that a lack of

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“clearly established law” on mistaken-identity arrests meant Evans and King

weren’t on notice that their conduct might be unconstitutional. The district

court agreed and entered summary judgment in favor of Evans and King on

the basis of qualified immunity. Nerio appealed and limited his challenge to

the judgment concerning Evans.

Our review is de novo. See Morrow v. Meachum, 917 F.3d 870, 874 (5th

Cir. 2019).

II.

Evans is entitled to qualified immunity unless Appellant Nerio can

show two things: first, that Evans violated a statutory or constitutional right,

and second, that “the right at issue was clearly established at the time of

defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232

(2009) (quotation omitted). The Supreme Court does not mandate an order

of operations, so we can affirm a qualified-immunity award by answering

either question or both. See id. at 236. The district court focused on the

second question. We do the same and affirm.

A.

The Fourth Amendment protects 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. “Because arrests are ‘seizures’ of

‘persons,’ they must be reasonable under the circumstances.” District of

Columbia v. Wesby, 138 S. Ct. 577, 585 (2018). Yet “[q]ualified immunity

shields an officer from suit” unless that “officer had fair notice that her

conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“[Q]ualified

immunity operates to ensure that before they are subjected to suit, officers

are on notice their conduct is unlawful.” (quotation omitted)). Fair notice

requires clearly established law. That is, the law must “clearly prohibit the

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officer’s conduct in the particular circumstances before him” so “every

reasonable official” knows not to engage in that conduct. Wesby, 138 S. Ct. at

590; see also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

“Abstract or general statements of legal principle untethered to

analogous or near-analogous facts are not sufficient to establish a right

‘clearly’ in a given context; rather, the inquiry must focus on whether a right

is clearly established as to the specific facts of the case.” Vincent v. City of

Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). To show the law is clearly

established, a party must “identify a case where an officer acting under

similar circumstances . . . was held to have violated the Fourth Amendment.”

Wesby, 138 S. Ct. at 590 (emphasis added) (quotation omitted).

We cannot find a case that would’ve given Evans “fair notice” that

his conduct might be unconstitutional. Brosseau, 543 U.S. at 198. Therefore,

Appellant Nerio has not shown that the violative nature of Evans’s particular

conduct was clearly established at the time of the arrest.

Start with Baker v. McCollan, 443 U.S. 137 (1979). That case also

involved two brothers with similar names—Leonard McCollan and Linnie

McCollan. Id. at 140. Somehow, Leonard managed to acquire an exact copy

of Linnie’s driver’s license—save that “‘Leonard’s picture graced it instead

of Linnie’s.’” Ibid. (quoting McCollan v. Tate, 575 F.2d 509, 511 (5th Cir.

1978)). By getting arrested for drug charges and pretending to be his brother

all the way through the moment he was bailed out of jail, Leonard sullied his

brother’s good name. Id. at 140–41. After Linnie ran a red light, officers ran

a warrant check and thought they found a wanted man. Id. at 141. They took

Linnie into custody, and officials cross-referenced his identification with

records from his brother’s arrest on narcotics charges. Ibid. Thanks to

Leonard’s fake ID, the records lined up. And poor Linnie sat in jail for several

days. Id. at 140–41. Only after officers examined a picture of the wanted man

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(i.e., Leonard) did they realize they’d made a mistake. That’s when they

released Linnie. Id. at 141.

Linnie sued the county sheriff “for the intentional failure to

investigate and determine that the wrong man was imprisoned.” Id. at 143.

The Supreme Court held he had no cognizable claim under 42 U.S.C. § 1983.

Id. at 146–47. That wasn’t to say that the Court blessed the sheriff’s conduct.

It simply meant that “[w]hatever claims [Linnie’s] situation might give rise

to under state tort law, . . . it gives rise to no claim under the United States

Constitution.” Id. at 144. In so holding, the Court noted that the

“Constitution does not guarantee that only the guilty will be arrested” nor

does it require officials “to perform an error-free investigation” of mistaken-

identity claims. Id. at 145–46.

Baker does not help Appellant Nerio for two reasons. First, it held

there was no Fourth Amendment violation. Id. at 146. And to clearly establish

the violative nature of an officer’s conduct, a prior decision must at least hold

there was some violation of the Fourth Amendment. See Wesby, 138 S. Ct. at

590. Second, the theory of liability in Baker was that the defendant sheriff

himself had erred by failing to institute measures that would have uncovered

the misidentification. See Baker, 443 U.S. at 141–43. Here, however, Evans

wasn’t the one who searched the driver’s license database, and hence Evans

wasn’t the one who misidentified Appellant Nerio. Nothing in Baker would

have led a reasonable officer in Evans’s position to think the Constitution

required him to second-guess other officers.

Nor does Hill v. California, 401 U.S. 797 (1971), help Appellant Nerio.

There, police arrested a man named Miller thinking he was actually a man

named Hill. Id. at 799. Miller told police he wasn’t Hill and produced ID to

corroborate that assertion. Ibid. Even so, Miller matched the description of

Hill and was inside Hill’s apartment when police arrived; those two facts

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convinced the Court that “the officers’ mistake was understandable and the

arrest a reasonable response” to the situation. Id. at 803–04. The Court

therefore held that the officers had not committed a constitutional violation.

Id. at 801. As in Baker, the absence of a holding that some officer violated an

arrestee’s constitutional right means that Hill falls short of giving Evans

notice that arresting Nerio might be unconstitutional. See Wesby, 138 S. Ct.

at 590. So Hill does not clearly establish the law.

Circuit precedent doesn’t help Appellant Nerio either. 2 In Bosarge v.

Mississippi Bureau of Narcotics, two officers surveilled a drug deal in a Best

Buy parking lot. 796 F.3d 435, 437 (5th Cir. 2015). Officers traced the

suspect’s vehicle to a Mindi Bosarge and the suspect’s cell phone to a

Charles Bosarge. Ibid. The officers then arrested the plaintiff—a different

Charles Bosarge—and he was detained for six months. Id. at 436, 443. The

plaintiff said the officers had gotten it all wrong—that when the officers were

surveilling the Best Buy drug deal, he was working a 12-hour shift on a shrimp

boat. Id. at 437. And he said that the officers’ mistaken identification must

have been unconstitutional because he did not look like the man the officers

had actually seen. Id. at 436–37.

We carefully considered the plaintiff’s claims and found them

wanting. We noted that “reasonable mistakes by police officers, even leading

to the arrest of the wrong person, do not implicate the Fourth Amendment.”

Id. at 442. And the officers’ identification of the plaintiff was just that sort of

mistake. We therefore concluded that the officers hadn’t violated his Fourth

2

Although we know the Supreme Court’s decisions can clearly establish the law,

the Supreme Court has never held that our decisions can do the same. See Wesby, 138 S. Ct.

at 591 n.8 (“We have not yet decided what precedents—other than our own—qualify as

controlling authority for purposes of qualified immunity.”).

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Amendment rights at all, much less any rights that were clearly established.

Id. at 443.

Bosarge does not clearly establish the unlawfulness of Evans’s conduct

in this case. For one thing, its holding that there was no Fourth Amendment

violation renders it incapable of clearly establishing the law. See Wesby, 138

S. Ct. at 590. For another, the factual similarity between Bosarge and the case

at hand makes it difficult to see how every reasonable official in Evans’s

position would have understood that what he did violated a constitutional

right. See Al-Kidd, 563 U.S. at 741. The officers in both cases relied on a

wiretap to identify a potential drug deal, then surveilled that exchange, traced

phones and license plates back to a particular name, and eventually arrested

a man by that name. In this case and Bosarge, the arrestee argued that he

looked little like the real criminal surveilled by officers. And Bosarge held

there was no Fourth Amendment violation at all. That holding might have

led a reasonable officer in Evans’s position to think his conduct was

constitutional; it certainly wouldn’t have mandated the contrary conclusion.

B.

Appellant Nerio’s principal counterargument is that this is not a

mistaken-identity case at all. Rather, he says, Evans violated the law clearly

established in Franks v. Delaware, 438 U.S. 154 (1978). That case held that an

officer violates the Fourth Amendment by intentionally or recklessly

including a false statement in a warrant application. Appellant Nerio never

made this argument in his objections to the magistrate’s report and

recommendation—there he never cited, much less discussed, Franks. So he

arguably forfeited it. See Masel v. Villarreal, 924 F.3d 734, 749 (5th Cir. 2019).

Forfeited or not, the argument isn’t a winning one. Liability under

Franks requires a certain mindset and certain conduct: an officer must

intentionally, “or with a reckless disregard for the truth,” include “a false

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statement in a warrant application” or omit a material fact from it. Kohler v.

Englade, 470 F.3d 1104, 1113 (5th Cir. 2006). Among other things, Appellant

Nerio claims that Evans recklessly disregarded the truth in his warrant

application. Specifically, he alleges that Evans (1) falsely indicated that a

Facebook search linked Appellant Nerio to the cell phone used at the meth

deal; (2) listed the Cricket Wireless address as Appellant Nerio’s residence;

and (3) omitted a description of the physical dissimilarities between

Appellant Nerio’s driver’s license photo and the Tapo Lane Nerio. Based on

the record before us, Evans’s conduct does not satisfy the Franks-Kohler

standard.

Although Evans was wrong about (1) and (2), Appellant Nerio has not

shown that Evans made these statements recklessly. Evans only included the

Facebook search in his affidavit after King informed him it had taken place,

and King honestly believed another agent had run the search. Perhaps Evans

could have done more to corroborate King’s assertion, but Evans did not

recklessly disregard the truth by trusting his colleague. The same can be said

of including the Cricket Wireless address in the affidavit.

Nor did Evans recklessly omit (3). It’s true that the man Evans

observed at the meth deal and the man King showed him in the driver’s

license photo were not the same Nerio. It’s also true that by the time Evans

wrote the warrant affidavit, he knew the license database contained two

different Nerios. But what Evans did not know was that he and his colleagues

had identified the wrong man. In fact, Evans and the other officers on the

surveillance team looked at Appellant Nerio’s license photo and “were sure

that was the person” they’d seen during their surveillance work. And in his

deposition for this case, Evans stood fast on that point. Evans was mistaken.

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But everything in the record suggests that was “an honest mistake.”

Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994).

AFFIRMED.

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