Emmanuel Angulo v. Shawn Brown

Case: 19-40887 Document: 00515613219 Page: 1 Date Filed: 10/23/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

October 23, 2020

No. 19-40887

Lyle W. Cayce

Clerk

Emmanuel Angulo,

Plaintiff—Appellant,

versus

Shawn Brown, Agent, United States Customs and Border

Protection; Jeffery McCrystal, Agent, United States

Customs and Border Protection; United States of

America,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:18-CV-50

Before Smith, Clement, and Oldham, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Plaintiff Emmanuel Angulo sued the United States of America and

Customs and Border Protection (“CBP”) Officers Shawn Brown and Jeffery

McCrystal for injuries suffered during an incident at the International Port of

Entry Gateway Bridge in Brownsville, Texas. The district court dismissed

Angulo’s claims against the United States for lack of subject-matter

jurisdiction based on the customs-duty exception to the Federal Tort Claims

Case: 19-40887 Document: 00515613219 Page: 2 Date Filed: 10/23/2020

No. 19-40887

Act (“FTCA”). The district court also granted summary judgment in favor

of Brown and McCrystal based on qualified immunity. We AFFIRM.

I. Facts and Proceedings

At the time of the events at issue, Angulo was a 71-year-old U.S.

citizen, was a retired military veteran, and suffered from disabilities including

cervical myelopathy and impaired hearing. In 2016, while returning from a

visit to Matamoros, Mexico, Angulo and a passenger were stopped by Brown

in one of the marked lanes at the port of entry. Surveillance cameras captured

what followed. Although both are soundless, the videos provide important

information about the interaction between Angulo and the CBP officers. One

video, an external camera, captured events from the front of Angulo’s van,

and the other, an internal camera in the passport control office, captured

events that took place inside the office.

Angulo alleges that Brown greeted and began questioning him in

Spanish, which Angulo took to be disrespectful and racially motivated.

Angulo asked to speak with a supervisor. The video shows Brown speaking

to Angulo, opening the rear door of the van to look inside, and repeatedly

stepping into the inspection station booth and then reemerging to continue

the conversation over the course of about five minutes. During this time

Angulo can be seen leaning out his window and gesturing to Brown.

About five minutes into the interaction, Brown placed a piece of paper

on Angulo’s windshield and gestured forward, directing Angulo to the

secondary inspection site for further examination. Angulo pulled forward

slightly, then abruptly stopped to verify that he would have the opportunity

to speak with Brown’s supervisor. Brown asked Angulo to shut off his vehicle

and hand over his keys; Angulo complied.

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Two other officers, McCrystal and Officer Eduardo Guerra,1

approached the vehicle from the secondary inspection area because they

heard yelling coming from Brown’s lane. While Brown stepped away from

Angulo’s car door to move a parking cone out of the way, McCrystal

approached the driver’s side window and spoke briefly with Angulo.

What happened next is disputed. Angulo claims that “McCrystal

without any warning[ ] opened the door to the motor vehicle, . . . grabbed Mr.

Angulo by the neck and forcibly threw Mr. Angulo to the ground and placed

handcuffs on Mr. Angulo with the assistance of Agent Brown.”

The Government argues that McCrystal asked Angulo to unlock the

door, and that Angulo complied. McCrystal then opened the car door and

asked Angulo to exit the vehicle; Angulo did not comply. McCrystal claims

that he attempted to help Angulo from the vehicle, but that when Angulo

resisted he used a “shoulder-pin restraint technique” to remove Angulo

from the vehicle.

The video depicts McCrystal approaching the driver’s side window

and conversing briefly with Angulo. He appears to pull on the door handle,

then says something to Angulo, and finally he opens the door. McCrystal

converses further with Angulo before holding out a hand. The van lurches

forward.2 McCrystal then reaches one arm into the van, which rocks slightly,

before McCrystal leans into the van with both arms. After a brief struggle,

McCrystal emerges holding Angulo with both arms wrapped around his

body, and then both fall to the ground. The view of what happens next is

1

Guerra was named as a defendant in Angulo’s initial complaint but was not

referenced in Angulo’s amended complaint.

2

Angulo had stopped the van atop a speed bump when he stopped to verify that he

would have a chance to speak with Brown’s supervisor; the lurch appears to be the van

settling down from atop the speed bump.

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obstructed by the van door and Guerra’s body, but the parties agree that this

was when McCrystal, with Brown’s assistance, placed handcuffs on Angulo

while he was on the ground.

The video shows that, a few moments later, McCrystal raises a

handcuffed Angulo to his feet and leads him toward the passport control

office. Angulo stumbles and falls, so Brown joins McCrystal, and the two

agents help Angulo to his feet and escort him to an interior office for further

questioning. Angulo alleges that the officers “forcibly marched and/or

dragged” him to the interrogation area, but both the exterior and interior

videos depict the three men walking under their own power, albeit at a brisk

pace. At no point do the videos depict Angulo being “dragged.”

The parties agree that, once the officers and Angulo had reached the

interior interrogation room, the handcuffs were removed, and Angulo was

searched and interviewed by two supervisory CBP officers. Angulo was

released after questioning. The entire incident, from the time Angulo first

pulled into the primary inspection lane until he is seen on the video getting

back into his van and leaving, lasted just over one hour.

Angulo sued the United States under the FTCA for assault, false

arrest, false imprisonment, and intentional infliction of emotional distress.

He also sued Officers Brown and McCrystal pursuant to Bivens for

unreasonable seizure, false arrest, and false imprisonment in violation of the

Fourth Amendment and excessive force in violation of the Fourth

Amendment. See Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971).

The Government filed a motion to dismiss claims against the United

States under Rule 12(b)(1) for lack of jurisdiction and to dismiss claims

against the officers under Rule 12(b)(6) for failure to state a claim or, in the

alternative, for summary judgment in favor of the officers.

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The district court dismissed all claims against the United States,

finding that, because the customs-duty exception to the FTCA found in 28

U.S.C. § 2680(c) applied to Angulo’s claims, the United States had not

waived sovereign immunity.

The district also court converted the motion to dismiss Angulo’s

Bivens claims against the officers into a motion for summary judgment based

on a defense of qualified immunity, which it granted. The district court found

Angulo’s claims for unreasonable seizure, false arrest, and false

imprisonment failed because Angulo had not been arrested or unreasonably

seized, and his claims for excessive force failed because Brown and

McCrystal had not used unreasonable or excessive force.

Angulo timely appealed.

II. Standard of Review

We review the grant of summary judgment de novo and apply the

same standard as the district court. Romero v. City of Grapevine, 888 F.3d 170,

175 (5th Cir. 2018). 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). “Although we review evidence

in the light most favorable to the nonmoving party, we assign greater weight

. . . to the facts evident from video recordings taken at the scene.” Carnaby

v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Thus, we consider “the

facts in the light depicted by the videotape,” resolving conflicts in the

nonmovant’s favor only where Angulo’s assertions are not “blatantly

contradicted” by video evidence. Scott v. Harris, 550 U.S. 372, 380–81

(2007).

We review dismissals under Federal Rule of Civil Procedure 12(b)(1)

based on exceptions to the FTCA de novo. Jeanmarie v. United States, 242

F.3d 600, 602 (5th Cir. 2001).

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III. Discussion

Angulo argues on appeal that granting summary judgment based on

qualified immunity on his unreasonable seizure claim was improper because

he was either arrested without probable cause or, at a minimum, seized

without reasonable suspicion. He also argues that the district court

misapplied the test for excessive use of force laid out in Graham v. Connor,

490 U.S. 386 (1989), and should have found that Angulo was clearly

subjected to excessive force under the circumstances.

Angulo also argues that 28 U.S.C. § 2680(c)’s customs-duty

exception to the FTCA’s waiver of sovereign immunity cannot apply to

intentional tort claims without eviscerating 28 U.S.C. § 2680(h)’s waiver for

“assault, battery, false imprisonment, false arrest, malicious prosecution,”

etc. when committed by a law enforcement officer. Even if the Government’s

reading of § 2680(c) and (h) is correct and the subsections are reconcilable,

Angulo argues that § 2680(c) is inapplicable in this instance because the

search on his vehicle had not yet begun when McCrystal pulled Angulo from

the vehicle.

A.

“Qualified immunity shields federal and state officials from money

damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was clearly established

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011) (cleaned up).3 “Qualified immunity shields from liability ‘all but the

3

As an antecedent matter, the Government asserted—briefly—that Angulo should

not have recourse to a Bivens action in the first place because the border is a new Bivens

context and special factors counsel against implying an action. See Ziglar v. Abbasi, 137 S.

Ct. 1843, 1857–58 (“[T]he Court has made clear that expanding the Bivens remedy is now

a ‘disfavored’ judicial activity.”). Although this court has recognized Bivens actions against

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plainly incompetent or those who knowingly violate the law.’ Accordingly,

‘qualified immunity represents the norm,’ and courts should deny a

defendant immunity only in rare circumstances.” Romero, 888 F.3d at 176

(first quoting Malley v. Briggs, 475 U.S. 335, 341 (1986), and then quoting

Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). The plaintiff has the burden

to negate a properly raised defense of qualified immunity. Poole v. City of

Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

Thus, to avoid summary judgment, Angulo must show that—viewing

the evidence in the light most favorable to his claims and resolving factual

disputes in his favor—he has put forth enough evidence that a jury could

CBP officers in the past, see Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006)

(denying qualified immunity to CBP agent at border on Bivens claim), cert. denied, 549 U.S.

1096 (2006), the Supreme Court’s recent ruling in Hernandez v. Mesa strongly implies that

proximity to the border alone is sufficient to qualify as a “new context” in which Bivens is

unavailable, 140 S. Ct. 735 (2020) (“Since regulating the conduct of agents at the border

unquestionably has national security implications, the risk of undermining border security

provides reason to hesitate before extending Bivens into this field.”).

Nonetheless, we will assume without deciding that a Bivens remedy is available for

three reasons. First, the international implications of a cross-border shooting—of vital

importance in Hernandez—are not present here, where the dispute is more similar to

standard Fourth Amendment unreasonable seizure cases to which Bivens has applied in the

past. Second, the Supreme Court has expressly endorsed the “assume-and-dispose”

approach in “appropriate” cases. See Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017);

Wood v. Moss, 572 U.S. 744, 757 (2014) (assuming without deciding that a Bivens remedy

exists, despite describing it as “an antecedent issue”). This court has done the same. See

Petzold v. Rostollan, 946 F.3d 242, 248 n.21 (5th Cir. 2019); Serrano v. Customs & Border

Patrol, --- F.3d ---, 2020 WL 5539130, at *11 (5th Cir. Sept. 16, 2020). Third, the Supreme

Court has “repeatedly stressed the importance of resolving immunity questions at the

earliest possible stage of the litigation.” Wood, 572 U.S. at 755 n.4 (cleaned up). We can

resolve this case now, without having to decide—lacking the benefit of a district court

opinion and with only a single paragraph of briefing—whether Hernandez should be

understood to categorically preclude Bivens actions against CBP agents at the border. So,

we do.

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rationally find that he was unreasonably seized or arrested and that he was

subjected to unreasonably excessive force in the process.

(1)

In order to make out a claim for unreasonable seizure, false arrest, or

false imprisonment under the Fourth Amendment, Angulo must show that

he was unreasonably seized. Although Angulo concedes that CBP had the

right to stop him at the border, he argues that he was arrested without

probable cause—or at a minimum, seized without reasonable suspicion—

when he was removed from his vehicle, handcuffed, and brought into the

passport control office for questioning. Warrantless seizures are “per se

unreasonable unless they fall within a few narrowly defined exceptions,”

such as arrest with probable cause or a temporary seizure based on reasonable

suspicion. United States v. Ho, 94 F.3d 932, 935 (5th Cir. 1996). Relevant

here, one such “important exception is the border search doctrine.” United

States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993).

We have long recognized the Government’s “plenary authority to

conduct routine searches and seizures at the border, without probable cause

or a warrant.” United States v. Montoya de Hernandez, 473 U.S. 531, 537

(1985). As our colleagues in the Second Circuit explained, “a suspicionless

search at the border is permissible under the Fourth Amendment so long as

it is considered to be ‘routine.’” Tabbaa v. Chertoff, 509 F.3d 89, 98 (2d Cir.

2007). Because this interaction took place at the border in the context of

Angulo’s seeking entry to the United States, the Government was entitled to

conduct a routine search. United States v. Ramsey, 431 U.S. 606, 616

(“[S]earches made at the border, pursuant to the long-standing right of the

sovereign to protect itself by stopping and examining persons and property

crossing into this country, are reasonable simply by virtue of the fact that they

occur at the border.”).

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Here, CBP intended to question Angulo briefly and search his vehicle.

The Government does not need to show any level of suspicion to thoroughly

search an entrant’s vehicle at the border. United States v. Flores-Montano, 541

U.S. 149, 152 (2004). Courts have held that substantially longer and more

invasive searches than that to which Angulo was subjected were nonetheless

“routine” searches that required no level of particularized suspicion. See,

e.g., id. at 154 (finding that removal, disassembly, and reassembly of a fuel

tank was routine); Tabbaa, 509 F.3d at 95–99 (finding that detaining entrants

for four to six hours, subjecting them to pat-downs, and forcibly kicking their

feet open were nonetheless routine).

The hour of questioning is unquestionably within the Government’s

power, since “delays of one to two hours at international borders are to be

expected.” Flores-Montano, 541 U.S. at 155 n.3. Similarly, removing Angulo

from his vehicle and handcuffing him were only necessary because Angulo

refused to exit the vehicle voluntarily on his own. See Tabbaa, 509 F.3d at 100

(“[B]order crossers cannot, by their own non-compliance, turn an otherwise

routine search into a non-routine one.”). This was a routine inspection.

Angulo insists that what he experienced amounted to arrest, not mere

seizure for inspection. However, when the Government has authority to stop

or seize a person or property, that authority “necessarily carries with it the

right to use some degree of physical coercion or threat thereof to effect it.”

Graham, 490 U.S. at 396. Even outside the border context, using moderate

force and applying handcuffs are not enough to convert a stop into an arrest.

See United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993) (“Clearly,

using some force on a suspect, pointing a weapon at a suspect, ordering a

suspect to lie on the ground, and handcuffing a suspect—whether singly or

in combination—do not automatically convert an investigatory detention

into an arrest requiring probable cause.”).

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In Sanders, for example, this court emphasized that handcuffs were

merely a precaution in support of a reasonable detention. Id. at 209. Here,

handcuffs were briefly applied to a suspect resisting a lawful inspection and

refusing to comply with reasonable commands necessary to carry out such an

inspection; they were removed promptly once Angulo reached the interview

room and was frisked. In the border context, this interaction lacked indicia

sufficient to lead a reasonable person to believe he had been arrested. We

therefore find that Angulo was neither arrested nor unreasonably seized.

(2)

Even when a seizure is otherwise justified, however, the use of force

to effect that seizure must be reasonable. To overcome the officers’ qualified

immunity defense on the excessive force claim, Angulo “must show ‘(1) an

injury, (2) which resulted directly and only from a use of force that was clearly

excessive, and (3) the excessiveness of which was clearly unreasonable.’”

Poole, 691 F.3d at 628 (quoting Ontiveros v. City of Rosenberg, 564 F.3d 379,

382 (5th Cir. 2009)). Injury need not be substantial but must be more than de

minimis. Hanks v. Rogers, 853 F.3d 738, 744–45 (5th Cir. 2017). Here, the

reasonableness prong is dispositive, so that is where we turn our attention.

The Supreme Court has explained that the “‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. Courts should consider such factors as “the

severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. A use of force is more likely

to be reasonable when officers use “measured and ascending” actions that

correspond to a suspect’s level of compliance or resistance. See, e.g., Poole,

691 F.3d at 629; Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir.

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2010) (finding use of force reasonable when it involved “measured and

ascending responses” to a plaintiff’s noncompliance).

The context of our analysis is an international border crossing, where

the “Government’s interest in preventing the entry of unwanted persons and

effects is at its zenith.” Flores-Montano, 541 U.S. at 152. Brown had plenary

authority to search Angulo and his vehicle and a duty to question him. When

“a car has been legitimately stopped by law enforcement officers, requesting

occupants to step out of the vehicle is a de minimis additional intrusion that is

outweighed by the government’s legitimate and weighty interest in officer

safety.” Davila v. United States, 713 F.3d 248, 260 (5th Cir. 2013) (cleaned

up).

Angulo alleges that he was peacefully conversing with Brown (albeit

tensely, given that he was accusing Brown of racism and demanding to speak

with Brown’s supervisor) and complying with all requests when he was

violently accosted by McCrystal, who allegedly grabbed him by the neck and

forcibly threw him to the ground. This is “blatantly contradicted” by the

video evidence. Scott, 550 U.S. at 380–81 (“The Court of Appeals should not

have relied on such visible fiction; it should have viewed the facts in the light

depicted by the videotape.”).

The video shows McCrystal and Guerra arriving to help Brown, after

several minutes of Brown’s interacting calmly with a wildly gesticulating and

uncooperative Angulo. McCrystal speaks with Angulo briefly, then attempts

to open the door. It is clearly locked, so he speaks with Angulo again. He tries

the door again, and again is unable to open it. He says something further to

Angulo, while pointing inside the window, and then successfully opens the

door. He then speaks with Angulo for several seconds, apparently asking him

to exit the vehicle; Angulo does not exit the vehicle. McCrystal briefly holds

a hand out to Angulo (explained by McCrystal as an effort to help Angulo

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from the vehicle); Angulo neither accepts the proffered assistance nor exits

on his own. McCrystal reaches into the vehicle with one arm; Angulo resists

this effort to extract him from the vehicle with such force that the vehicle

rocks to one side and the headlights flicker. Finally, McCrystal reaches in

with both arms, wraps them around Angulo’s midsection, and extracts

Angulo. McCrystal and Brown both testified that this was a standard

“shoulder-pin restraint technique” that the officers had been trained to use

under such circumstances; McCrystal visibly did not grab Angulo by the neck

or throw him to the ground. In short, the video shows the officers using

reasonable force to compel Angulo’s compliance with a command that they

were legally entitled to give him.

The reasonableness inquiry is objective and based on what the officers

knew at the time. Poole, 691 F.3d at 628. Angulo argues that he “did not fail

to give a declaration at Agent Brown’s request. Rather, his hearing disability

made it so he did not hear the questions.” Objectively, Brown could not know

Angulo’s reason for failing to respond to questions while communicating

clearly at other times—he knew only that Angulo was failing to respond to

questions. Brown reasonably interpreted this refusal to answer standard

questions, coupled with Angulo’s “completely unnecessary attitude[, as] an

attempt to distract [him] from the inspection,” which reasonably raises

suspicion that Angulo has a reason for trying to distract Brown from properly

inspecting his vehicle.

Angulo asserts that long-standing shoulder issues made the

handcuffing unusually painful for him. This may be true, but the officers did

not have access to Angulo’s health records. They couldn’t determine how

different means of asserting control would affect him personally—only that

they needed to “take reasonable steps to assert command of the situation.”

Davila, 713 F.3d at 260 (“The risk of harm to both the police and the

occupants of a stopped vehicle is minimized if the officers routinely exercise

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unquestioned command of the situation.” (quoting Arizona v. Johnson, 555

U.S. 323, 330 (2009)) (cleaned up)). Immobilizing a resisting suspect with

handcuffs is a reasonable step to assert command of the situation, particularly

where, as here, the handcuffs were removed just a few minutes later after the

suspect had been taken to an interview room.

Angulo relies on Deville v. Marcantel for the proposition that forcefully

removing someone from his or her vehicle, if unnecessary, can constitute

excessive force. 567 F.3d 156 (5th Cir. 2009). Deville is readily

distinguishable. In Deville, the plaintiff posed no risk of flight, she was not

suspected of committing any crime that would justify arrest, and officers

“engaged in very little, if any, negotiation with her” before “quickly

resort[ing] to breaking her driver’s side window and dragging her out of the

vehicle.” Id. at 167–68. Because she was not legitimately suspected of a crime

(nor for any other reason lawfully stopped), the officers also had no right to

ask her to step out of her vehicle or to arrest her. Id. at 164–65.

By contrast, here the officers had an indisputable right to inspect

Angulo’s vehicle, including by ordering him out of it. See Montoya de

Hernandez, 473 U.S. at 537–38; Davila, 713 F.3d at 260. This also includes

the implied right to use appropriate physical force to carry out the search, if

necessary. Graham, 490 U.S. at 396. Video evidence clearly depicts officers

engaging in negotiation to extract Angulo from his vehicle peacefully. They

had reason to suspect that he might be engaged in the type of serious criminal

activity that would correspond to a suspected effort to distract officers from

conducting a proper inspection, such as smuggling. Angulo actively resisted

this search and failed to answer the officers’ questions. In the face of active

resistance, the officers responded with “‘measured and ascending’ actions

that corresponded to” Angulo’s “escalating verbal and physical resistance.”

Poole, 691 F.3d at 629.

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Because the officers did not use excessive force, they are entitled to

qualified immunity.

B.

Finally, Angulo argues that the customs-duty exception to the FTCA

should not apply here. The FTCA waives sovereign immunity for claims “for

injury or loss of property, or personal injury or death caused by the negligent

or wrongful act or omission of any employee of the Government while acting

within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1).

However, under the customs-duty exception, that waiver does not apply to

“[a]ny claim arising in respect of the assessment or collection of any tax or

customs duty, or the detention of any goods, merchandise, or other property

by any officer of customs or excise.” 28 U.S.C. § 2680(c).

The Supreme Court has interpreted the exception broadly, explaining

that “‘any claim arising in respect of’ the detention of goods means any claim

‘arising out of’ the detention of goods.” Kosak v. United States, 465 U.S. 848,

854 (1984). This court has held that this includes intentional tort claims that

arise out of “the inspection, seizure, or detention of goods by a Customs

agent.” Jeanmarie, 242 F.3d at 604. In interpreting § 2680, we are cognizant

that “[s]tatutes waiving sovereign immunity of the United States are to be

‘construed strictly in favor of the sovereign.’” Id.; see also United States v.

Nordic Vill., Inc., 503 U.S. 30, 34 (“[T]he Government’s consent to be sued

must be construed strictly in favor of the sovereign.”(cleaned up)).

Angulo notes that § 2680(h) preserves the Government’s sovereign

immunity for claims involving “assault, battery, false imprisonment, false

arrest,” and other intentional torts, except when such torts are committed by

“investigative or law enforcement officers of the United States

Government.” He argues that applying § 2680(c) to intentional torts by CBP

officers eviscerates the “exception to the exception” in § 2680(h).

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When presented with this argument in the past, we have agreed with

our colleagues in the Ninth Circuit that “§§ 2680(c) and 2680(h) must be

interpreted in a manner that reconciles them, without doing violence to

either.” Gasho v. United States, 39 F.3d 1420, 1433 (9th Cir. 1994). As this

court explained in Jeanmarie, “[w]e agree with the Ninth Circuit that

‘[w]hen strictly construed in light of § 2680(c), the waiver of immunity in

§ 2680(h) applies only to tortious conduct not involving the seizure and

detention of goods by Customs.’” 242 F.3d at 604–05 (quoting Gasho, 39

F.3d at 1433–34); see also Davila, 713 F.3d at 256 (“[E]ven intentional torts

committed by law enforcement officers are exempt from FTCA suits when

such torts were committed during circumstances that would warrant a

detention-of-goods exception.”).

Angulo’s second effort to navigate around § 2680(c) is to argue that

his treatment arose prior to the inspection of his vehicle, while he was still

being directed to the secondary inspection area, so § 2680(c) is inapplicable.

Angulo cites Davila, in which this court held that § 2680(c) did not apply

where the tort was allegedly committed after another suspect (the plaintiff’s

son) had already fled in the vehicle, so the tort was “unrelated to the vehicle

or the detention thereof.” 713 F.3d at 257.

This argument finds no support in the facts. Although Angulo’s

secondary inspection had not yet begun, the primary inspection had—the

video shows Brown opening the van’s rear door and sticking his head in to

look around. McCrystal removed Angulo from the van specifically for the

purpose of facilitating the ongoing detention and inspection of the van. To be

sure, the officers had to pause their ongoing inspection of Angulo’s vehicle

to turn their attention to removing him therefrom when he resisted, but that

brief pause clearly does not unmoor the allegations here from the underlying

inspection and uninterrupted detention of the van.

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The facts in this case being far more similar to Jeanmarie than to

Davila, we hold that Jeanmarie controls, and § 2680(c) applies. The United

States has not waived sovereign immunity, and the district court properly

dismissed Angulo’s FTCA claims for lack of subject-matter jurisdiction.

IV. Conclusion

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

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Andrew S. Oldham, Circuit Judge, concurring in part:

The majority correctly holds that the customs-duty exception to the

Federal Tort Claims Act bars Angulo’s claims against the United States. I

therefore join the majority’s excellent discussion of those claims in full. And

the majority correctly suggests that Angulo lacks a cause of action to sue the

individual CBP officers under Bivens. See ante, at 6 n.3. I would stop there.

The Supreme Court has told us that “the Bivens question . . . is

antecedent to the [constitutional] questions presented” in a case like this.

Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam) (quotation

omitted); see also ante, at 6 n.3 (noting the Bivens question is “an antecedent

matter”). Once we’re satisfied the answer to that question is that the plaintiff

lacks a cause of action, “we should say so and no more.” Petzold v. Rostollan,

946 F.3d 242, 256 (5th Cir. 2019) (Oldham, J., concurring in the judgment).

Why? For one thing, I don’t think we should use our Article III power to

resolve a question that the plaintiff lacks a cause of action to present. Cf.

Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“Federal courts may not decide

questions that cannot affect the rights of litigants in the case before them or

give opinions advising what the law would be upon a hypothetical state of

facts.” (quotation omitted)).

That’s especially true when the cause-of-action-lacking plaintiff

wants us to answer a constitutional question. “It is a well established principle

governing the prudent exercise of [federal court] jurisdiction that normally

[we should] not decide a constitutional question if there is some other ground

upon which to dispose of the case.” Escambia County v. McMillan, 466 U.S.

48, 51 (1984) (per curiam). This “procedural avoidance” doctrine has

frequently led the Supreme Court to focus on “an antecedent statutory issue,

even one waived by the parties, [when] its resolution could preclude a

constitutional claim.” Adrian Vermeule, Saving Constructions, 15 Geo. L.J.

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No. 19-40887

1945, 1948–49 (1997). See, e.g., Escambia County, 466 U.S. at 51–52

(remanding for court of appeals to consider statutory argument because

“[a]ffirmance on the statutory ground would moot the constitutional

issues”); Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 158 (1983)

(“Until the statutory question is decided, review of the constitutional issue

is premature.”). The doctrine is also the motivating force behind Pullman

abstention. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941)

(“Such constitutional adjudication plainly can be avoided if a definitive ruling

on the state issue would terminate the controversy. It is therefore our duty to

turn to . . . questions under Texas law.”).

It’s true that the Supreme Court has skipped the antecedent Bivens

question “on occasion.” Hernandez, 137 S. Ct. at 2007. But it refused to do

so in Hernandez, opting instead to vacate our decision on the constitutional

merits because “intervening guidance provided in [Ziglar v.] Abbasi” meant

answering the Bivens question “may” be sufficient “to resolve th[e] . . .

case.” Ibid. Bivens is likewise sufficient here. So I’d stop there.

18