Pearce v. FBI Agt Doe

Case: 20-20372 Document: 00515771970 Page: 1 Date Filed: 03/09/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

No. 20-20372 March 9, 2021

Lyle W. Cayce

Clerk

Brooke Pearce; Justina Garcia,

Plaintiffs—Appellees,

versus

FBI Agent Doe,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-3196

Before Higginbotham, Costa, and Oldham, Circuit Judges.

Per Curiam:*

The allegations in this case are indisputably tragic—a kidnapping

victim lost his life at the hands of an FBI agent who tried to rescue him. The

question presented is whether those allegations state a claim under the

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-20372 Document: 00515771970 Page: 2 Date Filed: 03/09/2021

No. 20-20372

Fourth Amendment sufficient to overcome the agent’s qualified immunity.

The district court said yes. But the law says no. We reverse. 1

I.

Because this case is still at the pleading stage, the following recitation

comes from the plaintiffs’ allegations. See Sewell v. Monroe City Sch. Bd., 974

F.3d 577, 581 (5th Cir. 2020).

Ulises Valladares and his twelve-year-old son U.V. were at home

when two men entered and demanded information about Ulises’s brother.

The assailants bound and gagged Ulises and U.V. with duct tape. Then they

kidnapped Ulises and left U.V. behind. U.V. managed to escape to a

neighbor’s house and reported the situation to local law enforcement. The

FBI assisted the kidnapping investigation.

One day into the FBI’s investigation, Ulises’s brother received a

ransom call from the kidnappers. Law enforcement traced the call and used

it to predict Ulises’s location. A team of FBI agents including Agent Doe

approached a home with their guns drawn and confirmed Ulises was bound

inside. Agent Doe broke a window during the approach and pointed his gun

through the opening. The gun discharged, and a bullet struck and killed

Ulises.

Ulises’s mother and sister (“Plaintiffs”) sued in federal district court.

Their Third Amended Complaint included an illegal-search-and-seizure

claim against Agent Doe under Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971), and the Fourth Amendment. It also included

1

Judge Higginbotham would remand with instructions that the district court

consider ordering the plaintiffs to file a reply tailored to qualified immunity. See Schultea v.

Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc).

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state-law claims against Doe and the kidnappers, as well as a claim against the

United States under the Federal Tort Claims Act.

Agent Doe moved to dismiss all claims against him under Federal Rule

of Civil Procedure 12(b)(6). Doe argued that Bivens did not provide a cause

of action, that the complaint failed to plead a plausible Fourth Amendment

violation, and that Doe was entitled to qualified immunity in any event.

The district court disagreed and denied the motion to dismiss. It

acknowledged “the lack of specific detailed facts” in the complaint and

recognized that Agent Doe could have fired his weapon out of mere

“negligence.” But it held the factual paucity did not matter “because the

evidence shows that a homicide was committed by Agent Doe.” The district

court rejected Doe’s Bivens and Fourth Amendment arguments because

“[c]learly, a person has a right under the federal Constitution to not be

murdered.” And it rejected Doe’s qualified-immunity argument because “all

reasonable officers would have known that the act of ‘blindly’ shooting

through a window at an unidentified person[] violates the Constitution.”

Agent Doe timely noticed an interlocutory appeal.

II.

We have jurisdiction to review the district court’s denial of qualified

immunity under the Supreme Court’s collateral-order doctrine. See Ashcroft

v. Iqbal, 556 U.S. 662, 671–72 (2009). Our jurisdiction also extends to legal

issues “that are directly implicated by the defense of qualified immunity.”

Garcia de la Paz v. Coy, 786 F.3d 367, 371 (5th Cir. 2015) (quotation omitted).

Such issues include “whether to recognize new Bivens claims,” id. (citing

Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007)), and “whether [a] complaint

has the heft to state a claim,” Iqbal, 556 U.S. at 674 (quotation omitted). Both

those issues matter here. We address each in turn.

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A.

The Supreme Court has told us that the availability of a Bivens claim

is a question “‘antecedent’ to . . . other questions” like the existence of a

constitutional violation or the applicability of qualified immunity. Hernandez

v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam) (quoting Wood v. Moss, 572

U.S. 744, 757 (2014)). Agent Doe addressed this antecedent question in his

motion to dismiss. The district court rejected Agent Doe’s Bivens argument.

So one might reasonably expect that it would be part of Doe’s appeal. See

Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (noting Bivens “was the

product of an ‘ancien regime’ that freely implied rights of action” and that

“ended long ago” (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017)), pet.

for cert. filed (Jan. 29, 2021) (No. 20-1060).

Inexplicably, Agent Doe did nothing to raise the Bivens problem in our

court. So we do not reverse the district court on that ground. Cf. Iqbal, 556

U.S. at 675 (questioning the availability of a Bivens claim before “assum[ing]

without deciding[] that respondent’s First Amendment claim is actionable

under Bivens” because “Petitioners d[id] not press th[e] argument” on

appeal). We therefore proceed to ask whether Plaintiffs adequately pleaded a

claim under the Fourth Amendment.

B.

Under Federal Rule of Civil Procedure 8(a)(2), a complaint “must

contain . . . a short and plain statement of the claim showing that the pleader

is entitled to relief.” The Supreme Court has interpreted that language to

require pleadings that “contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

plausible on its face when “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. Plausibility does not require “detailed factual

allegations,” but “labels and conclusions,” “formulaic recitation[s],” and

“naked assertions devoid of further factual enhancement” will not do. Id.

(quotations omitted). Pleading facts that are “merely consistent with” a

defendant’s liability is also insufficient. Twombly, 550 U.S. at 557.

To plausibly state a claim for excessive force in violation of the Fourth

Amendment, Plaintiffs must allege an intentional seizure (among other

things). See Brower v. County of Inyo, 489 U.S. 593, 596–97 (1989)

(determining from the original public meaning of the Fourth Amendment

that a “seizure” occurs “only when there is a governmental termination of

freedom of movement through means intentionally applied” (emphasis in

original)); Gorman v. Sharp, 892 F.3d 172, 173–74 (5th Cir. 2018) (reversing

the district court’s denial of qualified immunity to a defendant who

accidentally shot a fellow agent because “there is no Fourth Amendment

violation in the absence of intentional conduct”); Childress v. City of Arapaho,

210 F.3d 1154, 1157 (10th Cir. 2000) (holding that police “did not ‘seize’

plaintiffs within the meaning of the Fourth Amendment” when they

accidentally shot the hostages while making “every effort to deliver them

from unlawful abduction”). If the Plaintiffs allege a violation of the Fourth

Amendment, then we must consider whether they allege a violation of clearly

established law sufficient to overcome FBI Agent Doe’s qualified immunity.

See Pearson v. Callahan, 555 U.S. 223, 243–45 (2009).

Here, the only plausible reading of the allegations is that Doe

accidentally shot Ulises while trying to help him by ending the hostage

situation. Such accidental conduct does not result in a Fourth Amendment

seizure. See Brower, 489 U.S. at 596; Gorman, 892 F.3d at 175; Childress, 210

F.3d at 1157. As a result, Plaintiffs have not alleged a violation of the Fourth

Amendment. And even if arguendo Plaintiffs could allege a violation of the

Fourth Amendment, cf. Milstead v. Kibler, 243 F.3d 157, 163–64 (4th Cir.

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2001), abrogated on other grounds by Pearson, 555 U.S. at 235, they have not

come close to doing so in a way that overcomes Agent Doe’s qualified

immunity.

We REVERSE the district court’s denial of qualified immunity and

REMAND with instructions to dismiss Plaintiffs’ Fourth Amendment

claim. 2

2

Plaintiffs filed a motion to dismiss Agent Doe’s appeal as frivolous. As explained

above, the appeal is not frivolous. In fact, it is meritorious. Plaintiffs’ motion to dismiss is

therefore DENIED. Plaintiffs also filed a motion for attorney’s fees. That motion is

DENIED.

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