Armando Nieves Martinez v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO NIEVES MARTINEZ; No. 19-16953

AMELIA PESQUEIRA ORTEGA, on

their behalf and on behalf of R.N.P.; D.C. No.

ARMANDO NIEVES PESQUEIRA, 4:13-cv-00955-

Plaintiffs-Appellants, CKJ-LAB

v.

OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted December 9, 2020

San Francisco, California

Filed May 11, 2021

Before: William A. Fletcher and Sandra S. Ikuta, Circuit

Judges, and Karen E. Schreier,* District Judge.

Opinion by Judge Schreier;

Dissent by Judge W. Fletcher

*

The Honorable Karen E. Schreier, United States District Judge for

the District of South Dakota, sitting by designation.

2 NIEVES MARTINEZ V. UNITED STATES

SUMMARY**

Federal Tort Claims Act

The panel dismissed an appeal for lack of jurisdiction

pursuant to the discretionary function exception under the

Federal Tort Claims Act (“FTCA”) in a case alleging tort

claims against the United States.

Plaintiffs alleged tortious actions by government officials

during a criminal investigation related to a border crossing.

Plaintiffs’ vehicle was subject to a dog sniff test at a border

checkpoint, and border patrol agents used several field test

kits to test the windshield wiper fluid for illegal substances.

Armando Nieves Martinez and his family were detained due

to these tests; and Armando, following his interrogation by

border agents, spent forty days in custody. Laboratory tests

eventually found no drugs in the vehicle, and the United

States moved to dismiss the complaint against Nieves

Martinez. Plaintiffs filed suit under the FTCA alleging

causes of action for assault, negligence and gross negligence,

false imprisonment, and intentional infliction of emotional

distress.

The FTCA constitutes a limited waiver of sovereign

immunity in certain suits against government employees. The

waiver, however, is limited under the discretionary function

exception, which prohibits suit in any claim where a

government employee’s acts or omissions were in the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NIEVES MARTINEZ V. UNITED STATES 3

discretionary function or duty of a federal agency or

government employee.

The panel applied a two-step analysis to determine

whether the alleged conduct fell within the discretionary

function exception.

At step one of the test, the panel held that the border

agents’ acts were discretionary. Specifically, the panel held

that the agents were not subject to a mandatory federal

protocol when they used the test kits to test the windshield

wiper fluid, and their action was discretionary under the first

prong of the discretionary function exception test. The panel

further held that there was no mandatory policy or procedure

for the dog sniff test. Concerning the agents’ interview and

detention of plaintiffs, the panel held that the United States

did not act unconstitutionally when interviewing, arresting,

and subsequently detaining Nieves Martinez. Because Nieves

Martinez’s detention was based on a valid finding of probable

cause and no violation of the Constitution was shown, the

district court properly found that the agents’ acts were

discretionary under the first prong of the test.

At step two of the discretionary function exception test,

the panel considered whether the investigative actions

involved considerations of social, economic, or political

policy. The panel held that, here, the agents were carrying

out a criminal investigation when they detained the Nieves

family. Because the investigation involved policy judgments

at the core of the executive branch, the agents’ conduct

clearly involved the type of policy judgment protected by the

discretionary function exception. The panel held that whether

the agents negligently carried out the liquid drug test and dog

sniff was immaterial to the analysis under the discretionary

4 NIEVES MARTINEZ V. UNITED STATES

function exception. The panel also held that even though one

of the agent’s actions may have been negligent and even

abusive, the actions were not completely lacking legitimate

policy rationale and they were shielded by the discretionary

function exception. Because the agents’ discretionary

judgments involved social, economic, or political

considerations, and their actions did not violate Nieves

Martinez’s constitutional rights, the panel affirmed the

district court’s discretionary function exception determination

as it related to claims arising out of the alleged assault,

negligence and gross negligence, and false imprisonment of

Nieves Martinez and his family.

The panel held that the discretionary function exception

applied to bar the Nieves family’s intentional infliction of

emotion distress claim because plaintiffs did not have a valid

constitutional challenge to the interrogation. The panel held

further that the Nieves family’s challenge to the district

court’s judgment as to this claim following the bench trial

also failed for another reason: their failure to include key

trial testimony.

Judge W. Fletcher dissented, and he would hold that the

discretionary function exception was not available as a

defense. He would hold that Agent Mendez made a

discretionary decision, as part of his criminal investigation, to

use a field drug test kit to test the windshield washer fluid in

the Nieves’ vehicle. The kit specified a mandatory protocol

for testing fluids for drugs. Mendez failed to follow the

mandatory protocol when he performed Test A, and he failed

entirely to perform the mandated Test U. After negligently

performing the drug test, Agent Mendez reported erroneously

to Agent Casillas that the drug test had detected

methamphetamine, and Agent Casillas then arrested Nieves

NIEVES MARTINEZ V. UNITED STATES 5

Martinez. Nieves Martinez, an innocent man, was

imprisoned for forty days based on Mendez’s mistake.

Because Mendez failed to follow the mandatory protocol of

the drug test kit, the discretionary function exception was not

available as a defense.

COUNSEL

David L. Abney (argued), Ahwatukee Legal Office P.C.,

Phoenix, Arizona, for Plaintiffs-Appellants.

Dennis C. Bastron (argued), Assistant United States Attorney;

Christina M. Cabanillas, Deputy Appellate Chief; Michael

Bailey, United States Attorney; United States Attorney’s

Office, Tucson, Arizona; for Defendant-Appellee.

6 NIEVES MARTINEZ V. UNITED STATES

OPINION

SCHREIER, District Judge:

This appeal requires us to decide if the discretionary-

function exception, 28 U.S.C. § 2680(a), shields the United

States from suit under the Federal Tort Claims Act (FTCA)

for allegedly tortious actions during a criminal investigation

related to a border crossing. We hold that, because the alleged

actions are not unconstitutional, it does.

FACTUAL AND PROCEDURAL BACKGROUND

On August 18, 2011, appellant Armando Nieves

Martinez, a resident of Caborca, Sonora, Mexico and a

commercial grape grower, departed Caborca with his wife,

appellant Amelia Pesquiera Ortega, and the couple’s two

children, appellants Armando Nieves Pesquiera and Regina

Nieves Pesquiera, to go shopping in Chandler, Arizona. The

family encountered two checkpoints on their way to the

border. At the first checkpoint, each member of the Nieves

family showed the officer their visa or permit. A drug

detection dog walked around the vehicle, and to Nieves

Martinez’s knowledge, it did not detect anything in the

vehicle.

Before the Nieves family arrived at the second

checkpoint, a border patrol agent told Matthew Roden, who

was a border patrol agent stationed at the second checkpoint,

that the Nieves family’s vehicle was supposedly carrying

drugs. Roden and his drug detection dog were a certified drug

detection team. When the Nieves family arrived, Roden took

his drug detection dog to sniff their vehicle. When the dog

sniffed the front of the vehicle, “her head snapped back, her

NIEVES MARTINEZ V. UNITED STATES 7

muscles tightened up,” and Roden understood those signs to

mean that she had detected an odor on the vehicle. The dog

was trained to detect and alert to only certain odors, such as

marijuana, cocaine, heroin, and methamphetamine. After the

dog alerted, Roden asked the Nieves family to pull over into

a secondary inspection area where the dog again alerted to the

front of the vehicle. Roden climbed underneath the car and

looked in the engine but could not find what, if anything,

caused the dog to alert.

Border patrol agents drove the Nieves family’s vehicle to

the Ajo Border Patrol Station to more thoroughly search it.

Roden and another agent, Francisco Mendez Garcia, searched

the vehicle and checked the windshield wiper fluid reservoir

of the vehicle. Mendez knew from his training that liquid

drugs have been found concealed in windshield washer fluid.

Mendez used a flashlight to inspect the liquid and thought it

looked abnormal and murky. Mendez suspected that the

murkiness might be caused by liquid drugs present in the

windshield washer fluid.

Mendez and Agent Reno used several field test kits to test

the windshield wiper liquid for illegal substances, and at least

one test indicated the presence of methamphetamine. Mendez

did not perform a second test to confirm whether the

substance was methamphetamine or amphetamine.

While Roden and Mendez conducted the field tests,

another agent, Victor Casillas, interacted with the Nieves

family. Casillas was the supervisor of a team of border patrol

agents called the “Disrupt Unit,” a specialty border patrol unit

that focused on targeting illegal organizations. Before formal

interviews began, Casillas read the Miranda warnings in

8 NIEVES MARTINEZ V. UNITED STATES

Spanish to the three adult Nieves family members—Nieves

Martinez, his wife, and his son.

Nieves Martinez and his son were placed in separate

holding cells. His wife and daughter were permitted to stay

together in an open seating area. Casillas, who is fluent in

Spanish, conducted formal questioning of each family

member in Spanish and in the presence of another agent,

Wander Falette, who is also fluent in Spanish.

Nieves Martinez initially denied that he had any

involvement in criminal activity. During the interrogation,

Mendez informed Casillas the windshield wiper fluid field

tested positive for methamphetamine, and Casillas repeatedly

told Nieves Martinez that the agents had found drugs in the

car. After three hours of questioning, Casillas presented

Nieves Martinez with the container of the substance that had

tested positive for methamphetamine.

Casillas then told Nieves Martinez that if he did not

confess whose drugs were in the car and where they came

from, his wife would go to a prison in Kentucky, his son

would go to a federal prison, and his daughter, a minor,

would be in the custody of the United States. Casillas

eventually brought Nieves Martinez’s son into the cell where

the interrogation was taking place. His son was crying and

Nieves Martinez felt “totally destroyed” to have to tell his son

that United States authorities were claiming the family had

drugs.

Nieves Martinez’s son left the cell after one or two

minutes of speaking with his father. Casillas then returned

and began “shouting that he needed a confession” or someone

to hold responsible for the drugs found in the Nieves family’s

NIEVES MARTINEZ V. UNITED STATES 9

vehicle. Nieves Martinez asked to speak with his wife, and

she was brought into the cell. The two decided that Nieves

Martinez would take the blame for the drugs in order to save

the rest of the family from what Casillas had threatened

would happen to them. Nieves Martinez confessed—

falsely—to smuggling the drugs. Nieves Martinez estimated

that he spent about 45 minutes actively answering Casillas’s

questions.

After Nieves Martinez’s apparent confession, Homeland

Security Investigations (HSI) Agent Brian Derryberry became

the lead agent on the case. Derryberry transported Nieves

Martinez in a van to Phoenix, Arizona, with Casillas and a

third agent. During the drive, the agents pressed Nieves

Martinez for more details on the drug smuggling operations.

The agents told Nieves Martinez that if he did not provide

more information, they would not release his family. Initially,

Nieves Martinez fabricated details about a drug transfer to

satisfy Casillas’s demands for a confession, stating that the

family was taking the drugs, which had been hidden in the

vehicle while it was in the repair shop, to a shopping center,

where the drugs would be taken out of the vehicle. Later,

Nieves Martinez recanted his confession, telling the agents

that he had only confessed for the sake of his family, not

because the vehicle actually contained drugs. He told the

agents he had not committed a crime in Mexico or in the

United States.

Eventually, Nieves Martinez was taken to the United

States Marshal’s office in Phoenix. While being checked into

the detention center, Nieves Martinez again told the agents

that he did not know how the drugs got into his vehicle and

that he only confessed so the agents would release his family.

The next morning, while being transported, Nieves Martinez

10 NIEVES MARTINEZ V. UNITED STATES

reiterated that he only confessed so that his family would be

released.

The next day, the United States filed a criminal complaint

against Nieves Martinez, accusing him of violating 21 U.S.C.

§§ 846, 841(a)(1), and 841(b)(1)(A)(vii). The complaint

included an affidavit of probable cause from Derryberry. The

affidavit detailed Derryberry’s past experience as a criminal

investigator, dating back to 2003. The affidavit’s statement of

probable cause stated that 1.25 gallons of liquid

methamphetamine had been found in Nieves Martinez’s car,

Roden’s drug detection dog had alerted to the vehicle two

times, and the vehicle’s windshield wiper fluid had tested

positive for methamphetamine. The affidavit stated that

Nieves Martinez initially maintained his innocence, but

ultimately confessed to the scheme involving the auto repair

shop. The affidavit did not disclose that Nieves Martinez later

recanted his confession. At a preliminary hearing, a

magistrate judge found probable cause to believe that Nieves

Martinez violated 21 U.S.C. §§ 841 and 846. The magistrate

judge ordered Nieves Martinez detained.

While Nieves Martinez was in custody, the investigation

continued. The agents sent a sample of the windshield wiper

fluid for more complete testing to a DEA laboratory. The

laboratory tests found no drugs in the fluid. Derryberry

ordered that the vehicle be searched with a drug detection

dog, fiber optic scopes, and additional tools. No drugs were

found. The next day, the United States moved to dismiss the

complaint against Nieves Martinez. In all, Nieves Martinez

spent forty days in custody.

The Nieves family filed suit against the United States

under the FTCA, alleging causes of action for assault,

NIEVES MARTINEZ V. UNITED STATES 11

negligence and gross negligence, false imprisonment, and

intentional infliction of emotional distress. The United States

moved for summary judgment on all claims.

The magistrate judge issued a Report and

Recommendation recommending that the district court deny

the United States’ motion for summary judgment. The district

court adopted the magistrate judge’s factual and procedural

findings but rejected the Report and Recommendation’s legal

conclusion. The district court found that the discretionary-

function exception to the FTCA shielded the United States

from suit arising out of the actions taken during the

investigation except those acts that were unconstitutional. The

district court granted summary judgment in favor of the

United States on the assault and negligence and gross

negligence claims after finding those claims were precluded

by the discretionary-function exception. It also determined

that the false imprisonment claim was not based on a

constitutional violation, and thus was also precluded. But the

court concluded that “[i]f the agents’ interrogation was

motivated by discriminatory animus . . . and resulted in a

confession that [the] agents were likely to know was false, the

agents’ interrogation cannot be protected under the

Constitution. Accordingly, because the court found there was

“a genuine issue of material fact as to whether [the] agents’

attempts to obtain a confession were outrageous and

motivated by malice,” the court allowed the claim of

intentional infliction of emotional distress to proceed to trial.

After a three-day bench trial, the district court issued an

order dismissing the intentional infliction of emotional

distress claim. The district court found that the Nieves family

failed to show that Casillas was motivated by malice when he

interrogated and elicited a false confession from Nieves

12 NIEVES MARTINEZ V. UNITED STATES

Martinez. Rather, the court found that “Casillas’s actions

were not motivated by malice, racial or otherwise.” The

Nieves family appeals both orders.

DISCUSSION

I. Does the FTCA’s Discretionary-Function Exception

Strip the District Court of Jurisdiction Over the

Nieves Family’s Claims of Assault, Negligence and

Gross Negligence, and False Imprisonment?

A. Standards of Review

This court reviews a district court’s grant of summary

judgment de novo to determine if, viewing the evidence and

drawing all inferences in the light most favorable to the non-

moving party, “any genuine issues of material fact remain and

whether the district court correctly applied the relevant

substantive law.” Bravo v. City of Santa Maria, 665 F.3d

1076, 1083 (9th Cir. 2011) (citing Delia v. City of Rialto,

621 F.3d 1069, 1074 (9th Cir. 2010)). The court may affirm

on any ground supported by the record. Campbell v. State of

Wash. Dep’t of Soc. and Health Servs., 671 F.3d 837, 842 n.4

(9th Cir. 2011) (citing Atel Fin. Corp. v. Quaker Coal Co.,

321 F.3d 924, 926 (9th Cir. 2003)). “Whether the United

States is immune from liability in an FTCA action is a

question of law reviewed de novo.” Alfrey v. United States,

276 F.3d 557, 561 (9th Cir. 2002) (quoting Fang v. United

States, 140 F.3d 1238, 1241 (9th Cir. 1998)).

B. Discretionary-Function Exception

The district court granted summary judgment in favor of

the United States on the Nieves family’s claims of assault,

NIEVES MARTINEZ V. UNITED STATES 13

negligence and gross negligence, and false imprisonment

based on the discretionary-function exception to the FTCA.

The United States enjoys immunity from suit “unless it has

expressly waived such immunity and consented to be sued.”

Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088

(9th Cir. 2007) (quoting Gilbert v. DaGrossa, 756 F.2d 1455,

1458 (9th Cir. 1985). “Such waiver cannot be implied, but

must be unequivocally expressed.” Id. (quoting Gilbert,

756 F.2d at 1458). When the United States has not

unequivocally consented to suit, a court must dismiss the

case, because such consent is “a prerequisite for jurisdiction.”

Id. (quoting Gilbert, 756 F.2d at 1458).

The FTCA constitutes a limited waiver of sovereign

immunity in suits 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, under

circumstances where the United States, if a

private person, would be liable to the claimant

in accordance with the law of the place where

the act or omission occurred.

28 U.S.C. § 1346(b)(1). That waiver, however, is limited

under the “discretionary-function” exception, which prohibits

suit in any claim that is:

based upon an act or omission of an employee

of the Government, exercising due care, in the

execution of a statute or regulation, whether

or not such statute or regulation be valid, or

14 NIEVES MARTINEZ V. UNITED STATES

based upon the exercise or performance or the

failure to exercise or perform a discretionary

function or duty on the part of a federal

agency or an employee of the Government,

whether or not the discretion involved be

abused.

28 U.S.C. § 2680(a). “[T]he purpose of the exception is to

prevent judicial second-guessing of legislative and

administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort . . . .”

United States v. Gaubert, 499 U.S. 315, 323 (1991) (cleaned

up). Thus, the exception “protects only governmental actions

and decisions based on considerations of public policy.” Id.

(quoting Berkovitz v. United States, 486 U.S. 531, 537

(1988)).

The Ninth Circuit applies a two-step analysis when

determining whether conduct falls under the discretionary-

function exception. Sabow v. United States, 93 F.3d 1445,

1451 (9th Cir. 1996). “First, we ask whether the challenged

actions involve ‘an element of judgment or choice.’ ” Id.

(quoting Gaubert, 499 U.S. at 322). If a “federal statute,

regulation, or policy specifically prescribes a course of action

for an employee to follow[,]” the act is not discretionary

because “the employee has no rightful option but to adhere to

the directive.” Berkovitz, 486 U.S. at 536. Second, if the court

determines that “the challenged actions involve an element of

choice or judgment,” the court then “determine[s] ‘whether

that judgment is of the kind that the discretionary function

exception was designed to shield.’” Sabow, 93 F.3d at 1451

(quoting Gaubert, 499 U.S. at 322–23). “More specifically,

if the judgment involves considerations of social, economic,

or political policy, the exception applies.” Id. (cleaned up).

NIEVES MARTINEZ V. UNITED STATES 15

1. Were the agents’ acts discretionary?

a. The windshield wiper fluid test and the drug

dog sniff test.

The Nieves family contends that the agents had a

mandatory duty to follow the proper testing protocols when

testing the windshield wiper fluid and conducting the drug

dog sniff test. But the Nieves family points to no “federal

statute, regulation, or policy [that] specifically prescribes a

course of action for an employee to follow” when conducting

either the windshield wiper fluid test or the dog sniff test.

Berkovitz, 486 U.S. at 536. First, no evidence suggests that

the agents neglected a mandatory protocol when they field

tested the windshield wiper fluid. The test kits contained a

warning indicating they were not designed for liquid samples

but that liquids could be tested “by placing the tip of . . . a 1

cm square (roughly 1/2” square) piece of paper into the

liquid[]” and then air drying the liquid sample. The guide also

indicated that a second test could be performed to confirm

whether the substance detected by the first test was

amphetamines or methamphetamines. The test instructions do

not state that further tests are mandatory, only that they

should be performed in sequence if performed at all. The

Officer’s Handbook and Law of Search protocols are silent

on use of field tests.

The fact that the test kits contained instructions for testing

liquids despite counseling against using them to test liquids

indicates that the kits’ instructions do not constitute a

mandatory policy precluding the agents from testing liquids

using the kits. Further, Mendez’s decision not to conduct a

second test to determine if the liquid was an amphetamine or

methamphetamine is not contrary to any mandatory federal

16 NIEVES MARTINEZ V. UNITED STATES

law or policy. Thus, the agents were not subject to a

mandatory federal protocol when they used the test kits to test

the windshield wiper fluid, and their action was discretionary

under the first prong of the discretionary-function exception

test.

Next, we examine whether there was a mandatory policy

or procedure for the dog sniff test. The Nieves family’s expert

witness opined at summary judgment that the agents’ search

of the Nieves family’s vehicle was “not complete, thorough

or within established and acceptable canine training,

handling, utilization, and/or practices or procedures and

techniques . . . .” But their expert conceded that the dog had

behavioral changes corresponding with an alert, that all dogs

alert differently and that an alert is a subjective determination

of a dog’s handler. The district court concluded that the

Nieves family’s expert did not offer his opinion based on

personal knowledge and did not state that the dog did not

alert at all, but rather the expert stated that the agent should

have allowed the dog more follow through after the dog’s

detection signal, and “should have taken additional steps to

make sure the dog alerted to an illegal substance.” The

district court also found that the expert’s opinion lacked

adequate foundation and was speculative, and thus, did not

consider the expert’s opinion.1 The expert testified that based

on his “gut” interpretation of events, there was “a lot of

pressure” on the agents to find contraband in the vehicle and

1

At summary judgment, courts may decline to consider “unsupported

speculation and subjective beliefs” in expert testimony and testimony that

is not founded in fact. See Guidroz-Brault v. Missouri Pac. R.R. Co.,

254 F.3d 825, 829–32 (9th Cir. 2001). Thus, the district court properly

excluded the expert’s conclusions that were based on speculation and

“gut” interpretation.

NIEVES MARTINEZ V. UNITED STATES 17

that that pressure may have influenced Agent Roden’s

interpretation of the dog’s actions. But the expert’s

skepticism is not equivalent to a mandatory policy or

procedure that was ignored by the agents.

b. The interview and detention.

Even if the agents’ actions involved elements of

discretion, agents do not have discretion to violate the

Constitution. See Galvin v. Hay, 374 F.3d 739, 758 (9th Cir.

2004). The Nieves family’s false imprisonment and assault

claims are premised on the assertion that the agents acted

unconstitutionally during Nieves Martinez’s interview, arrest,

and 40-day detention. Thus, the Nieves family asserts that the

agents’ actions are not discretionary acts protected by the

discretionary-function exception to the FTCA.

The court first addresses the Nieves family’s argument

that Casillas’s interrogation of Nieves Martinez violated the

Constitution. In support of this argument, the Nieves family

cites Fare v. Michael C., 442 U.S. 707 (1979), Henry v.

Kernan, 197 F.3d 1021 (9th Cir. 1999), and Moran v.

Burbine, 475 U.S. 412 (1986). None of these cases provide

strong support for the Nieves family’s claim that the agents

exceeded their constitutional authority.

The Nieves family cites Fare for the proposition that a

suspect may not be “worn down by improper interrogation

tactics or lengthy questioning or by trickery or deceit.” See

Fare, 442 U.S. at 726–27. But in Fare, the Court found that

the juvenile defendant was not worn down by improper

tactics, trickery, or deceit. Id. Rather, it found that the

juvenile had waived his Fifth Amendment rights after being

advised of his Miranda rights even though he had been

18 NIEVES MARTINEZ V. UNITED STATES

denied the right to speak with his probation officer. Id. “[N]o

special factors indicate[d] that the [defendant] was unable to

understand the nature of his actions.” Id. at 726. Thus, Fare

does not support a conclusion that the United States violated

Nieves Martinez’s rights during the interrogation.

The Nieves family cites Henry for the proposition that a

coercive interrogation can undermine a suspect’s ability to

exercise free will and can result in an involuntary confession.

See Henry, 197 F.3d at 1026–27. In Henry, officers failed to

terminate questioning after a suspect asked for an attorney, in

deliberate violation of Miranda and implied that his

statements would not be used against him. 197 F.3d

at 1027–28. Here, the district court concluded that Casillas

gave Miranda warnings to the adult members of the Nieves

family, who then waived their rights and consented to

questioning. And the evidence supports this conclusion. Thus,

the district court did not clearly err in concluding that the

Nieves family members received and waived their Miranda

warnings and as a result, under Henry, the United States did

not act unconstitutionally when interviewing Nieves

Martinez.

Finally, the Nieves family cites Moran for the proposition

that under certain circumstances, “police deception might rise

to a level of a due process violation.” See Moran, 475 U.S.

at 432. But Moran states that to reach that level, the police

deception must “shock[] the sensibilities of civilized society.”

Id. at 433–34. In Moran, the Court found that the officers’

failure to inform a subject who had waived his Miranda rights

that an attorney was trying to contact him did not deprive the

defendant of his due process rights. Id. at 417–18, 432. Thus,

Moran does not support the Nieves family’s claims that the

questioning was so coercive here as to violate Nieves

NIEVES MARTINEZ V. UNITED STATES 19

Martinez’s constitutional rights. Because Casillas’s interview

of Nieves Martinez did not violate Nieves Martinez’s

constitutional rights, Casillas’s conduct during the interview

is subject to the discretionary-function analysis.

Next, the court addresses the Nieves family’s claim that

Nieves Martinez’s arrest and subsequent detention violated

the Constitution.

If there were such a constitutional violation, then the

discretionary-function exception would not prohibit suit

“under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1); Galvin, 374 F.3d at 758. Therefore,

if the discretionary-function exception is not applicable,

under the FTCA, “suits against the United States are

governed by the substantive law of the place where the act or

omission complained of occurs,” McMurray v. United States,

918 F.2d 834, 836 (9th Cir. 1990) (citing 28 U.S.C. § 1346

(1988)). Under Arizona law, a false imprisonment claim

requires that a person be held “without his consent and

without lawful authority.” Slade v. City of Phoenix, 541 P.2d

550, 552 (Ariz. 1975). If a detention occurs under legal

authority the detention is lawful. Id.

But there is no constitutional violation in this case. An

officer can lawfully arrest a suspect when he or she has

probable cause. “Probable cause to arrest exists when officers

have knowledge or reasonably trustworthy information

sufficient to lead a person of reasonable caution to believe

that an offense has been or is being committed by the person

being arrested.” Rodis v. City, Cty. of San Francisco,

558 F.3d 964, 969 (9th Cir. 2009) (citation omitted).

20 NIEVES MARTINEZ V. UNITED STATES

“Whether probable cause exists depends upon the reasonable

conclusion to be drawn from the facts known to the arresting

officer at the time of the arrest.” Devenpeck v. Alford,

543 U.S. 146, 152 (2004). Under some circumstances,

government agents may make warrantless arrests when they

have probable cause to do so.” United States v.

Bueno-Vargas, 383 F.3d 1104, 1107 (9th Cir. 2004). But “the

Fourth Amendment requires a judicial determination of

probable cause as a prerequisite to extended restraint of

liberty following arrest.” Id.

When the agents arrested Nieves Martinez, Roden’s drug

detection dog had alerted twice to the Nieves family’s

vehicle, indicating the presence of an illegal substance that

the dog was trained to detect. At least one field test kit used

on the vehicle’s windshield wiper liquid tested positive for

methamphetamine. And Mendez knew from his training that

drugs are sometimes smuggled across the border in

windshield wiper fluid. These facts are reasonably

trustworthy information that are sufficient to lead a

reasonable person to conclude that Nieves Martinez, who

drove the vehicle, was in the process of bringing drugs across

the border. The agents therefore had probable cause to arrest

Nieves Martinez.

Moreover, the prior judicial determination that there was

probable cause to arrest Nieves Martinez precludes us from

revisiting this issue. After an initial arrest, “the Fourth

Amendment demands a prompt judicial determination of

probable cause” in order to continue detention before trial.

United States v. Fernandez-Guzman, 577 F.2d 1093, 1097

(7th Cir. 1978) (footnote omitted) (citing Gerstein v. Pugh,

420 U.S. 103 (1975)). A finding of probable cause at a

preliminary hearing is only reviewable in a subsequent civil

NIEVES MARTINEZ V. UNITED STATES 21

proceeding when the plaintiff argues that the officers engaged

in judicial deception. See Wige v. City of Los Angeles,

713 F.3d 1183, 1185–86 (9th Cir. 2013); Chism v.

Washington, 661 F.3d 380, 386 (9th Cir. 2011).

Here, a magistrate judge determined at a preliminary

hearing that the agents had probable cause to arrest Nieves

Martinez and to detain him. Thus, this court will not review

that finding of probable cause absent a showing that the

agents engaged in judicial deception.

A judicial deception claim requires that the Nieves family

“1) make a substantial showing of [the agents’] deliberate

falsehood or reckless disregard for the truth and 2) establish

that, but for the dishonesty, [Nieves Martinez’s arrest and

detention] would not have occurred.” Chism, 661 F.3d at 386.

The Nieves family did not meet their burden on either prong.

First, the Nieves family asserts that a reasonable fact finder

could conclude that because the test results from the

laboratory were negative, there were no drugs in the Nieves

family’s car. But the test results of the windshield wiper fluid

were not received from the lab until weeks after the

preliminary hearing. At the preliminary hearing, the

magistrate judge was advised that the drug dog alerted twice

on the vehicle and the wiper fluid tested positive for

methamphetamines. The agents were not being deliberately

misleading at the time of the hearing when they failed to

disclose test results that were not received until later.

Second, the Nieves family has not made a showing that

had Derryberry’s affidavit not contained falsehoods, the

magistrate judge’s finding would have changed. Even if

Derryberry included in the affidavit that Nieves Martinez

later recanted his confession, the magistrate judge would not

22 NIEVES MARTINEZ V. UNITED STATES

have had reason to know during the preliminary hearing that

Nieves Martinez’s car did not contain drugs or that his

original confession was false. The magistrate judge would

have still known that Nieves Martinez confessed to

smuggling drugs, the dog alerted to the vehicle twice, and the

field test was positive for methamphetamine. Thus, the

magistrate judge’s finding would not have changed if the

affidavit stated that Nieves Martinez recanted his confession.

To the extent the Nieves family relies on the

determination in their civil action that a reasonable trier of

fact could conclude that the dog-sniff and windshield fluid

test were not performed with the appropriate care, this

determination is irrelevant because it was based on facts

occurring after the probable cause hearing.

Because Nieves Martinez’s detention was based on a

valid finding of probable cause and no violation of the

Constitution has been shown, the district court properly found

that the agents’ acts were discretionary under the first prong

of the discretionary-function exception.2

2. Did the acts involve considerations of social,

economic, or political policies?

At step two of the discretionary-function test, the court

considers whether the investigative actions involve

considerations of social, economic, or political policy. Sabow,

2

To the extent that the Nieves Family’s assault claim is based on

contact Nieves Martinez received while in detention, it is also barred by

the discretionary-function exception. The Nieves family did not allege any

tortious conduct while Nieves Martinez was detained other than routine

contact necessary during the detention process.

NIEVES MARTINEZ V. UNITED STATES 23

93 F.3d at 1451. Here, the agents were acting to carry out a

criminal investigation when they detained the Nieves family.

Because “[t]he investigation of crime involves policy

judgments at the core of the executive branch[,]” the court

presumes that the “agent[s’] acts are grounded in policy[.]”

Gonzalez v. United States, 814 F.3d 1022, 1028, 1032 (9th

Cir. 2016). The inquiry is not focused on the “agent’s

subjective intent in exercising the discretion conferred by

statute or regulation, but on the nature of the actions taken

and on whether they are susceptible to policy analysis.”

Gaubert, 499 U.S. at 325 (footnote omitted) “The decision

need not actually be grounded in policy considerations so

long as it is, by its nature, susceptible to a policy analysis.”

Gonzalez, 814 F.3d at 1022, 1027–28, 1032 (9th Cir. 2016)

(quoting GATX/Airlog Co. v. United States, 286 F.3d 1168,

1174 (9th Cir. 2002)). When a court determines that an

agent’s actions are subject to discretion, a “‘strong

presumption’ arises that the [] actions were grounded in

policy considerations.” Id. at 1032 (quoting Gaubert,

499 U.S. at 324).

Here, the agents were carrying out a criminal

investigation when they detained the Nieves family. Because

“[t]he investigation of crime involves policy judgments at the

core of the executive branch[,]” the nature of the agents’

conduct at issue here “clearly involves the type of policy

judgment protected by the discretionary function exception.”

Id. (noting that investigative agents “must consider the

reliability of the information, the relative importance of the

crime, and the agency’s mission and resources”). “[I]n the

absence of mandatory directives governing how to perform

investigations, the discretionary-function exception bar[s] the

plaintiffs’ claims relating to the negligent conduct of the

investigation. That holding applies to any criminal or quasi-

24 NIEVES MARTINEZ V. UNITED STATES

criminal investigation . . . .” Alfrey v. United States, 276 F.3d

557, 565–66 (9th Cir. 2002) (footnote and internal citation

omitted).3

Whether the agents negligently carried out the liquid drug

test and dog sniff test is immaterial to the analysis under the

discretionary-function exception. See Kennewick Irrigation

Dist. v. United States, 880 F.2d 1018, 1029 (9th Cir. 1989)

(recognizing that if negligence defeated the discretionary-

function exception, the exception would be useless). When a

function is “ministerial” and “subject to external, objective

professional standards,” negligent performance of that

function may fall under the FTCA. Alfrey, 276 F.3d at 567.

But, as here, when choices involve a high level of

professional judgment, training, and experience, those

judgments involve policy considerations even when done

negligently. See Alfrey, 276 F.3d at 567.

The discretionary-function exception, however, does not

apply to law enforcement investigations when a federal

employee’s tactics during an investigation had “no legitimate

policy rationale.” Sabow, 93 F.3d at 1454. The Nieves family

urges the court to find that here, as in this court’s decision in

Sabow, the agents’ actions when they interrogated Nieves

3

The FTCA contains a law enforcement clause that extends the

United States’s waiver of sovereign immunity to claims against law

enforcement officers for eleven intentional torts, including assault and

false imprisonment. 28 U.S.C. § 2680(h). In the Ninth Circuit, if the

United States shows that the intentional tort alleged under § 2680(h) is

exempt under the discretionary-function exception, the plaintiff’s claim is

barred. Gasho v. United States, 39 F.3d 1420, 1433 (9th Cir. 1994).

Because the discretionary-function exception bars the Nieves Family’s

assault and false imprisonment claims, the court does not discuss whether

sovereign immunity is waived under § 2680(h).

NIEVES MARTINEZ V. UNITED STATES 25

Martinez had no legitimate policy rationale. The Nieves

family argues that law enforcement agents terrorized and

browbeat Nieves Martinez and frightened him by threatening

that his son and wife would be incarcerated in federal prison

for 15 to 30 years, and his daughter would be kept in custody

in the United States. But such method of interrogation did not

lack any policy rationale—his interrogation was furthering an

investigation meant to reduce the illegal transfer of drugs

across the border. Thus, even though Casillas’s actions may

have been negligent and even abusive, they are not

completely lacking legitimate policy rationale and they are

shielded by the discretionary-function exception.

Because the agents’ discretionary judgments involved

social, economic, or political considerations, and their actions

did not violate Nieves Martinez’s constitutional rights, we

affirm the district court’s discretionary-function exception

determination as it relates to claims arising out of the alleged

assault, negligence and gross negligence, and false

imprisonment of Nieves Martinez and his family.

II. Should This Court Dismiss the Nieves Family’s

Appeal of the District Court’s Order Following the

Bench Trial on the Intentional Infliction of Emotion

Distress Claim Because the Nieves Family Failed to

Include Key Trial Testimony?

We may affirm the district court’s judgment against the

Nieves family as to the intentional infliction of emotion

distress claim for the same reason we affirm the district

court’s determination as to the Nieves family’s other tort

claims. The district court did not clearly err in finding that

Casillas’s interrogation of Nieves Martinez was not motivated

by racial animus and therfore did not constitute a

26 NIEVES MARTINEZ V. UNITED STATES

constitutional volation, see infra. The Nieves family do not

have any other valid constitutional challenge to the

interrogation, and the discretionary function exception applies

to bar their intentional infliction of emotion distress claim.

The Nieves family’s challenge to the district court’s judgment

as to this claim following the bench trial also fails for another

independent grounds: their failure to include key trial

testimony.

“If the appellant intends to urge on appeal that a finding

or conclusion is unsupported by the evidence or is contrary to

the evidence, the appellant must include in the record a

transcript of all evidence relevant to that finding or

conclusion.” Fed. R. App. P. 10(b)(2). “Based on this rule, we

have held that failure to provide relevant portions of a

transcript may require dismissal of the appeal.” Syncom Cap.

Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991); Portland

Feminist Women’s Health Ctr v. Advoc. for Life, Inc.,

877 F.2d 787, 789–90 (9th Cir. 1989) (refusing to consider an

argument because the party bearing the burden of providing

a transcript of the evidence of a contempt hearing failed to do

so); Sw. Adm’rs, Inc. v. Lopez, 781 F.2d 1378, 1380 (9th Cir.

1986) (dismissing the appeal because of the appellant’s

failure to provide a trial transcript).

The United States argues that we should dismiss the

Nieves family’s appeal or affirm the district court’s factual

findings following the bench trial because the Nieves family

failed to include key evidence in its excerpts of record. Here,

the Nieves family did include some of the transcripts from the

hearing in the excerpts of record, but they failed to include

transcripts of Casillas’s testimony, Casillas’s report,

Casillas’s notes from the interrogation, testimony of the

NIEVES MARTINEZ V. UNITED STATES 27

United States’ expert on interviewing techniques, and

Derryberry’s reports.

In their appeal, the Nieves family challenges the district

court’s conclusion that the United States did not commit

intentional infliction of emotion distress during Casillas’s

interrogation of Nieves Martinez and its conclusion that the

discretionary-function exception shielded Casillas’s actions.

The district court found that the discretionary-function

exception applied because Casillas was not motivated by

racial malice, but instead by a desire to protect the public

from drug trafficking. The district court’s factual findings

were supported by Casillas’s testimony that: he was bilingual

and grew up in Yuma, Arizona; he did not state during the

interrogation that “all Mexicans are drug dealers”; he would

never have made such a statement, because his parents are

Mexican; he interacts with people from Mexico daily but

does not arrest or interview all of them; and his motive was

to apprehend people who commit crimes. Because the Nieves

family did not include Casillas’s testimony in the record on

appeal, it did not “include in the record a transcript of all

evidence relevant” to a finding or conclusion that the district

court clearly erred when it determined that Casillas was not

motivated by malice during the interrogation. Federal Rule of

Appellate Procedure 10(b)(2) requires the appellant to include

a transcript of all evidence relevant to the court’s finding or

conclusion. Thus, under this court’s precedent, this claim is

dismissed for failure to provide relevant evidence on appeal.

CONCLUSION

The discretionary-function exception applies to the

Nieves family’s claims of negligence, gross negligence,

assault, false imprisonment, and intentional infliction of

28 NIEVES MARTINEZ V. UNITED STATES

emotional distress. Thus, the Nieves family’s appeal on those

claims is dismissed for lack of jurisdiction.

W. FLETCHER, Circuit Judge, dissenting:

In August 2011, Armando Nieves Martinez and his family

left their home in Mexico for an overnight shopping trip to

Arizona. Federal Border Patrol agents stopped the family at

a checkpoint based on a suspicion that their vehicle contained

illegal drugs. After performing a drug test in a manner that

violated the mandatory test protocol and erroneously

concluding that the windshield wiper fluid contained illegal

drugs, and after coercing Nieves into making a false

confession by threatening to imprison his wife and two teen-

age children, federal authorities imprisoned Nieves for forty

days. Nieves was released after a properly performed drug

test revealed that the fluid contained no drugs.

Nieves and his family brought suit under the Federal Tort

Claims Act. My colleagues conclude that the suit is barred by

the discretionary function exception. I strongly but

respectfully dissent.

I. Background

Nieves is the patriarch of a Mexican family with a

prosperous grape-growing business in Sonora, Mexico. The

annual gross income of the business is about three million

dollars. Nieves and his family typically traveled across the

border into the United States five or six times a year. On the

morning of August 18, 2011, Nieves, his wife, their eighteen-

year-old son, and their fourteen-year-old daughter, left their

NIEVES MARTINEZ V. UNITED STATES 29

home in the town of Caborca, in Sonora, Mexico, in the

family’s Ford Explorer SUV. They intended to drive to

Chandler, Arizona, stay there overnight, and return to Mexico

the next day. They had a reservation at the Windmill Inn in

Chandler, where they had stayed four or five times before.

The Border Patrol had been tipped to expect a vehicle

coming north smuggling drugs, and Nieves’s SUV matched

a general description of the vehicle. There are two

checkpoints between the border and Chandler.

Nieves and his family crossed the border without incident.

At the first checkpoint, they showed their visas and permits.

A drug-sniffing dog inspected their SUV without alerting,

and they were allowed to drive on. Agents at the first

checkpoint called ahead to the second checkpoint to alert

them that the Nieveses were coming toward them. At the

second checkpoint, a drug-sniffing dog “alerted” to the front

grill area of the SUV, and Border Patrol agents directed

Nieves to drive to the secondary inspection area. At

secondary, Nieves and his family were directed to get out of

the SUV. The dog again “alerted.” Based on the agent’s

description of the dog’s behavior, the Nieveses’ expert

witness characterized the dog as having “sniffed” and as

having had “indicators,” but not as having given an actual

alert.

Border Patrol agents at the second checkpoint separated

Nieves from his family and placed him in handcuffs.

Nieves’s wife, son, and daughter were taken to a trailer at the

checkpoint. Agent Casillas told Nieves that he and his family

were in trouble because drugs had been found in their SUV.

The Nieves family and the SUV were then driven from the

checkpoint to a Border Patrol station thirty to forty minutes

30 NIEVES MARTINEZ V. UNITED STATES

away. Nieves and his family were placed in separate holding

cells at the station. His daughter was placed in a cell with her

mother. She and her mother were later allowed to sit in the

waiting area of the station.

Agent Mendez was asked to help search the vehicle. He

decided to test the SUV’s windshield wiper fluid using a field

drug test kit. The kit instructions specified that a liquid could

be tested by wetting paper with the liquid, drying the paper,

and putting the paper in a test pack. The instructions were

emphatic as to the type of paper required: “The choice of

paper is critical. Unscented, uncolored filter paper is ideal.

NEVER use brown paper, hand towels or newsprint.”

(Emphasis in original.)

Contrary to the instructions, Agent Mendez used a paper

hand towel to perform Test A. He wrapped a piece of the

hand towel around a stick, dipped the stick into the

windshield washer fluid, took the paper off the stick, dried the

paper, and tested the dried paper. He then repeated Test A,

performing it in the same manner. Based only on Test A,

Mendez concluded that the liquid contained

methamphetamine. Mendez testified that to his

“recollection” both Test A tests were positive for

methamphetamine. Agent Reno testified that only the second

test was positive.

If properly performed, Test A presumptively indicated the

presence of either methamphetamine or amphetamine. The

test kit instructions specified that if a certain color result was

obtained on Test A, indicating the possible presence of either

drug, Test U was required to determine which of the two

drugs, if either, had been detected. If Test A had given a false

positive, Test U could reveal that neither methamphetamine

NIEVES MARTINEZ V. UNITED STATES 31

nor amphetamine was present. Agent Mendez testified that

photographs in the record showed all of the tests he

performed. None of the photographs show Test U.

Nieves was interrogated at the station. He denied any

knowledge of drugs in the SUV. At some point during the

interrogation, Agent Mendez told Agent Casillas that the drug

test had detected methamphetamine in the windshield washer

fluid. Casillas then told Nieves that they had “found the

drugs,” and that he was going to spend fifteen years in prison.

Casillas told Nieves that if he did not confess, his wife would

be sent to a prison in Kentucky, his son would be sent to a

federal prison, and his daughter would be placed in U.S.

custody. Casillas told Nieves that he should “have the balls

to save [his] family from jail.” Nieves feared that he would

never see his family again and broke down weeping.

Agent Casillas brought Nieves’s wife and son into the

interrogation room. Nieves and his wife decided that Nieves

should provide a false confession in order to save the rest of

the family. After Nieves “confessed,” he was again

handcuffed. He was driven to Phoenix in a patrol car,

accompanied by Casillas. During the drive, Casillas told

Nieves that his family was going to prison if he did not

provide more details. Nieves provided made-up details, but

then told Casillas that he could no longer continue lying; that

he had committed no crime; and that if there were drugs in

the vehicle they were not his. Later, at the U.S. Marshal’s

Office in Phoenix, Nieves was interrogated by two different

agents. Nieves insisted to them that he was innocent and that

he had confessed only in order to save his family. Nieves’s

wife and children were released by the Border Patrol at about

6:00 p.m. that evening.

32 NIEVES MARTINEZ V. UNITED STATES

On August 19, the government filed a criminal complaint

against Nieves, charging him with conspiring to smuggle

500 or more grams of methamphetamine into the United

States. On September 23, the government filed a motion to

dismiss the complaint after additional testing revealed that

there had been no methamphetamine in the windshield

washer fluid. Nieves was then released, after forty days of

imprisonment.

After Nieves was released and allowed to return home to

Mexico, he was a changed man. He had nightmares two or

three times a week. Nieves’s wife testified, “He never went

back to being the same person, never again, and neither [did]

the children.” While Nieves was imprisoned in the United

States, his wife and children did not leave their house in

Mexico because they did not want to tell people what had

happened to them in Arizona. Both of Nieves’s children were

traumatized, and his son received therapy. The American

consulate repeatedly told Nieves’s wife and daughter, and

separately told Nieves and his son, that they were “drug

dealers.” All members of the family have been denied visas.

Nieves’s daughter had wanted to attend school in the United

States, but was unable to do so because she was denied a visa.

Nieves and his family brought suit against the United

States under the Federal Tort Claims Act (“FTCA”). The

United States moved for summary judgment on the ground

that it was protected from suit by the discretionary function

exception to the FTCA. The motion was referred to a

magistrate judge who concluded:

The agents’ decision to field test the

windshield washer fluid for drugs was a

discretionary choice. However, having made

NIEVES MARTINEZ V. UNITED STATES 33

that choice, the agents were obliged to

perform the test in a manner calculated to

ensure its accuracy, that is, to follow the

instructions on the kit. A reasonable trier of

fact could conclude that the agents did not do

that. A reasonable trier of fact could find that

the agents failed to perform the test in

accordance with the kit’s instructions, in

particular, they failed to perform the U test,

without which, the test had no scientific value.

Because Agent Mendez violated the test’s mandatory

protocol and incorrectly concluded that the liquid had tested

positive for methamphetamine, the magistrate judge

recommended that the discretionary function defense be

rejected, and that summary judgment to the United States be

denied.

The district court rejected the recommendation of the

magistrate judge. Relying on the discretionary function

defense, the court granted summary judgment to the United

States on all of the Nieveses’ claims except intentional

infliction of emotional distress. After a bench trial on that

claim, the court granted judgment to the United States based

on the discretionary function defense. In its order denying

summary judgment at the end of the trial, the district court

wrote: “Despite Border Patrol’s negligent and inaccurate field

testing of the suspected liquid methamphetamine, . . . the

discretionary function exception applies.”

The Nieveses timely appealed.

I strongly but respectfully disagree with my colleagues.

Agent Mendez’s choice to perform a drug test on the

34 NIEVES MARTINEZ V. UNITED STATES

windshield washer fluid was discretionary. But once having

made that choice, he did not have discretion to disregard the

test kit’s mandatory testing protocol. Because he did not

have discretion to disregard the testing protocol, the

discretionary function exception does not shield his

“negligent and inaccurate field testing” of the windshield

washer fluid.

II. Discussion

A. The Discretionary Function Exception

The FTCA waives the sovereign immunity of the United

States, authorizing damage suits “for injury or loss of

property, or personal injury . . . 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,

under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1).

There are several exceptions to the FTCA’s waiver of

sovereign immunity. One of them is the “discretionary

function exception.” The exception provides that the FTCA

does not waive the Government’s sovereign immunity from

“[a]ny claim . . . based upon the exercise or performance or

the failure to exercise or perform a discretionary function or

duty on the part of . . . an employee of the Government,

whether or not the discretion involved be abused.” Id.

§ 2680(a). There is no exception for the activities of law

enforcement personnel. Indeed, in the section providing for

an exception for several intentional torts, the FTCA

specifically excepts from that exception damage suits based

NIEVES MARTINEZ V. UNITED STATES 35

on “acts or omissions” of federal law enforcement officials

for “any claim arising . . . out of assault, battery, false

imprisonment, false arrest, abuse of process, or malicious

prosecution.” Id. § 2680(h).

The Supreme Court has addressed the discretionary

function exception in five opinions.

In Dalehite v. United States, 346 U.S. 15 (1953),

ammonium nitrite fertilizer was being loaded onto a ship for

transport to Europe under a government program to increase

food supplies in the aftermath of World War II. In a

catastrophic accident, the fertilizer exploded, killing

560 people and injuring 3,000 more. Specifications for the

production, bagging, and labeling of the fertilizer had been

set by United States employees. Plaintiffs alleged negligence

in setting the specifications. The Court held that the

discretionary function exception protected the Government

from suit on the ground that the decisions of the employees

in setting the specifications, even if negligent, “were all

responsibly made at a planning rather than operational level

and involved considerations more or less important to the

practicability of the Government’s fertilizer program.” Id. at

42 (emphasis added).

In Indian Towing Co. v. United States, 350 U.S. 61

(1955), a tug boat went aground due to the failure of a

lighthouse operated by the United States Coast Guard. The

Court held that the FTCA’s waiver of immunity applied even

though the task of operating a lighthouse was not typically a

task performed by a private person. The Court held, further,

that the discretionary function exception did not protect the

Government: “The Coast Guard need not undertake the

lighthouse service. But once it exercised its discretion to

36 NIEVES MARTINEZ V. UNITED STATES

operate a light . . . and engendered reliance on the guidance

afforded by the light, it was obligated to use due care to make

certain that the light was kept in good working order[.]” Id.

at 69 (emphasis added).

In United States v. Varig Airlines, 467 U.S. 797 (1984),

a Boeing 707 made an emergency landing after a fire broke

out in the towel disposal area of one of the lavatories. The

plane landed safely, but 124 passengers were killed by toxic

smoke. In a consolidated case, a DeHavilland Dove airplane

caught fire and crashed due to a malfunction in a gasoline-

burning cabin heater. Everyone on board was killed.

Plaintiffs in both cases alleged that employees of the Federal

Aviation Authority (“FAA”) had certified the aircraft for

flight after making only “spot checks” during their inspection

of the design of the aircraft, and had negligently failed to

inspect the design of the towel disposal area and the cabin

heater. The Court held that the discretionary function

exception protected the Government because the decision to

conduct only spot checks was authorized by statute, and

because the design of the FAA’s spot check program was an

administrative policy decision: “Congress wished to prevent

judicial ‘second-guessing’ of legislative and administrative

decisions grounded in social, economic, and political policy

through the medium of an action in tort.” Id. at 814

(emphasis added). “It was precisely this sort of judicial

intervention in policymaking that the discretionary function

exception was designed to prevent.” Id. at 820 (emphasis

added).

In Berkovitz v. United States, 486 U.S. 531 (1988), a two-

month-old infant was given a dose of oral polio vaccine.

Within a month, he contracted a severe case of polio that left

him completely paralyzed. The infant and his parents sued

NIEVES MARTINEZ V. UNITED STATES 37

the United States, alleging inter alia that employees in the

Bureau of Biologics of the Food and Drug Administration

(“the Bureau”) had improperly approved release of the lot of

vaccine that included the infant’s dose, in violation of the

regulations governing approval. The Court held that the

Government was not protected by the discretionary function

exception. The Court wrote:

The regulations generally allow the Bureau to

determine the appropriate manner in which to

regulate the release of vaccine lots, rather than

mandating certain kinds of agency action. . . .

Given this regulatory context, the

discretionary function exception bars any

claims that challenge the Bureau’s

formulation of policy as to the appropriate

way in which to regulate the release of

vaccine lots.

Id. at 546. However, “if the Bureau’s policy leaves no room

for an official to exercise policy judgment in performing a

given act, or if the act simply does not involve the exercise of

such judgment, the discretionary function exception does not

bar a claim that the act was negligent or wrongful.” Id.

at 546–47 (emphasis added). Because the Bureau improperly

released the vaccine lot in violation of the regulations, the

discretionary function exception did not apply.

Finally, in United States v. Gaubert, 499 U.S. 315 (1991),

Gaubert was the chairman of the board and the largest

shareholder of Independent American Savings Association

(“IASA”). Officials at the Federal Home Loan Bank Board

(“FHLBB”) facilitated the merger of IASA with a failing

bank. As a condition of the merger, officials at the FHLBB

38 NIEVES MARTINEZ V. UNITED STATES

and the Federal Home Loan Bank–Dallas (“FHLB–D”)

insisted that Gaubert remove himself from the management

of IASA and that he post $25 million of his own real

property as security in the event that IASA’s net worth fell

below a certain level. Federal regulators at FHLBB and

FHLB–D gave business advice to IASA, including a

recommendation that it replace its management and board of

directors. One of the recommended new directors was an

employee of FHLB–D. IASA followed the advice of the

federal regulators in all respects. Prior to the merger, while

under the management of Gaubert, IASA was thought to be

financially sound. Soon after their appointment, the new

board of directors announced that IASA had a “substantial

negative net worth.” Id. at 320. Gaubert brought suit under

the FTCA alleging substantial personal financial losses due

to mismanagement of IASA by employees of FHLBB and

FHLB–D. The Court held that the Government was protected

by the discretionary function exception. It first held that

FHLBB and FHLB–D had statutory and regulatory authority

to “supervise IASA through informal means.” Id. at 331. It

then held that while the actions of the employees of FHLBB

and FHLB–D were operational in some sense, they were not

operational in the sense of the actions of the Coast Guard in

Indian Towing and the Bureau in Berkovitz. Rather than

operational actions that entailed no discretion, the actions of

the employees of the FHLBB and FHLB–D required the

exercise of business judgment:

Day-to-day management of banking affairs,

like the management of other businesses,

regularly requires judgment as to which of a

range of permissible courses is the wisest.

Discretionary conduct is not confined to the

policy or planning level. ‘[I]t is the nature of

NIEVES MARTINEZ V. UNITED STATES 39

the conduct, rather than the status of the actor,

that governs whether the discretionary

function exception applies in a given case.’

Id. at 325 (quoting Varig Airlines, 467 U. S. at 813 (alteration

in original) (emphasis added)).

All five Supreme Court decisions are still good law. In

each of them except Dalehite, the first case in the line of

decisions, the Court has cited its earlier decisions, sometimes

to distinguish them and sometimes to rely on them, but never

to abandon or weaken them. Indeed, the Court wrote in Varig

Airlines with respect to Dalehite, “While the Court’s reading

of the Act admittedly has not followed a straight line, we do

not accept the supposition that Dalehite no longer represents

a valid interpretation of the discretionary function exception.”

Varig Airlines, 467 U.S. at 811–12. The Court in Gaubert,

the last case in the line of decisions, discussed and relied on

all four of the earlier decisions. See Gaubert, 499 U.S. at

322–29.

The Court’s five decisions are nuanced and context-

dependent, but we may synthesize them as follows. A policy

decision—that is, a discretionary decision—by a federal

employee is protected by the discretionary function

exception. See Dalehite and Varig Airlines. If a policy

decision is to be implemented in a manner that itself allows

judgment or discretion, the implementation is protected by

the discretionary function exception. See Gaubert. However,

if a policy decision is to be implemented in a manner that

does not allow judgment or discretion, the implementation is

not protected by the discretionary function exception. See

Indian Towing and Berkovitz.

40 NIEVES MARTINEZ V. UNITED STATES

This synthesis is articulated differently, but to the same

effect in Alfrey v. United States, 276 F.3d 557, 561 (9th Cir.

2002), where we wrote:

We answer the question whether the

discretionary-function exception bars a

particular claim by applying a two-part test.

First, we must decide whether the challenged

conduct is discretionary, that it, whether it

“involv[es] an element of judgment or

choice.” Fang [v. United States], 140 F.3d

[1238,] 1241 [(9th Cir. 1998)] (citing

Berkovitz, 486 U.S. [at] 536). . . . Second, if

the challenged conduct is discretionary, we

“must determine whether that judgment is of

the kind that the discretionary function

exception was designed to shield.” Berkovitz,

486 U.S. at 536.

(Some citations omitted.) See Sabow v. United States,

93 F.3d 1445, 1451 (9th Cir. 1996) (using Alfrey’s two-part

test).

The Government has the burden of demonstrating that the

discretionary function exception applies. Gonzalez v. United

States, 814 F.3d 1022, 1027 (9th Cir. 2016); see also Vickers

v. United States, 228 F.3d 944, 953 (9th Cir. 2000)

(concluding the INS “[did] not, at the summary judgment

stage, me[e]t its burden of demonstrating that the

discretionary function exception to the FTCA barred

[plaintiff’s] claim on this theory of negligence”).

NIEVES MARTINEZ V. UNITED STATES 41

B. Violation of Mandatory Drug Test Kit Protocol

I conclude that Agent Mendez’s violation of the drug test

kit’s mandatory protocol is not protected by the discretionary

function exception.

1. Non-discretionary Actions

Non-discretionary actions include a wide range of actions,

not limited to those whose standards of care are prescribed in

a federal statute, regulation, or policy. The Court made this

clear in Indian Towing, where the standard of care was a

general requirement that Coast Guard employees “use due

care to make certain that the light was kept in good working

order,” 350 U.S. at 69, and in Gaubert, where it wrote that

non-discretionary actions could include “decisions resting on

mathematical calculations . . . involv[ing] no choice or

judgment,” 499 U.S. at 331.

The following cases are four, among many, that illustrate

the variety of sources for mandatory standards of care.

In Bolt v. United States, 509 F.3d 1028 (9th Cir. 2007),

Carol Bolt fell on snow and ice, breaking her ankle, in the

common parking area of a U.S. Army apartment complex in

Fort Wainwright, Alaska. Her ankle never fully healed, and

she was permanently disabled. She brought suit under the

FTCA. The Army had adopted a “Snow Removal Policy” for

Fort Wainwright that “expressly impose[d] a specific and

mandatory duty to clear Family Housing Parking Areas of

snow and ice once a year, before the end of March.” Id.

at 1033. Because the Army had failed to clear the parking

area, in violation of the duty specified in its “Snow Removal

42 NIEVES MARTINEZ V. UNITED STATES

Policy,” we held that the discretionary function exception was

not a defense.

In Fang v. United States, 140 F.3d 1238 (9th Cir. 1998),

Freda Fang was badly injured in an automobile accident in

Sequoia National Park. Emergency Medical Technicians

(“EMTs”) employed by the National Park Service responded,

but Fang died while they were ministering to her. Fang’s

survivor brought a wrongful death action under the FTCA.

We wrote, “In addition to the staffing and equipment levels

set by the regulations, the Park Service established certain

protocols which dictate the EMTs’ required response to a

variety of medical conditions and situations.” Id. at 1242.

We distinguished between the EMTs’ actions that were

dictated by the “mandatory” protocols and those that were

not. Id. at 1242–43. Actions covered by the mandatory

protocols were not protected by the discretionary function

exception.

In In re The Glacier Bay, 71 F.3d 1447 (9th Cir. 1995), a

large tanker ran aground on a submerged rock in Cook Inlet,

Alaska, resulting in a major oil spill. The rock did not appear

on navigation charts prepared by the National Oceanic and

Atmospheric Administration (“NOAA”). Plaintiffs sued

under the FTCA for damage caused by the oil.

Hydrographers employed by NOAA had allegedly failed to

follow mandatory drafting protocols contained in a

Department of Commerce “Hydrographic Manual” and in

separate “Project Instructions” specific to the project.

Plaintiffs alleged, inter alia, that the hydrographers violated

project instructions for drawing sounding lines showing the

depth of the water. We concluded, “The language of the

instructions is mandatory.” Id. at 1452. Because the

NIEVES MARTINEZ V. UNITED STATES 43

hydrographers allegedly violated the mandatory instructions,

the discretionary function exception was not a defense.

In Kennewick Irrigation Dist. v. United States, 880 F.2d

1018 (9th Cir. 1989), an irrigation canal built by employees

of the federal Bureau of Reclamation broke in two places,

causing harm to the Irrigation District. Because a federal

employee had failed to follow “sound engineering practices”

during construction of the canal, resulting in the breaks, the

discretionary function exception was not a defense. Id.

at 1301–32.

2. Mandatory Drug Test Protocol

Law enforcement officials may choose to investigate

suspected criminal activity in a number of ways. The choice

of how to conduct a criminal investigation, including the

choice of how to establish probable cause, is protected by the

discretionary function exception. See Vickers, 228 F.3d

at 951 (“[T]he discretionary function exception protects

agency decisions concerning the scope and manner in which

it conducts an investigation so long as the agency does not

violate a mandatory directive.”). In the case before us, the

border patrol agents’ decisions to rely on a tip to conclude

that the Nieveses’ SUV might contain drugs, to detain the

Nieves family to look for drugs in the SUV, to use drug

sniffing dogs, to interrogate Nieves aggressively, and to

perform a drug test on the windshield wiper fluid were all

discretionary decisions.

However, once having decided to use the drug test kit,

Agent Mendez did not have discretion to violate its

mandatory protocol. Once Mendez chose to perform the drug

test, he was in the same position as the defendants in Indian

44 NIEVES MARTINEZ V. UNITED STATES

Towing and Berkovitz. In Indian Towing, the Coast Guard

made a discretionary choice to operate a lighthouse. Once

having made that choice, Coast Guard officials were

“obligated to use due care to make certain that the light was

kept in good working order.” Indian Towing, 350 U.S. at 69.

In Berkovitz, the Bureau made a discretionary choice to

release lots of polio vaccine under specific criteria. Once

having made that choice, Bureau officials were not protected

by the discretionary function exception when they released

vaccine lots in violation of those criteria. Berkovitz, 486 U.S.

at 546–47. In the case before us, the choice to perform the

drug test was discretionary, but once having made that choice

the manner of performing the test was not.

The requirement that law enforcement officials have

probable cause is a bedrock constitutional requirement. U.S.

Const. amend. IV; see Beck v. Ohio, 379 U.S. 89, 91 (1964);

see also Nurse v. United States, 226 F.3d 996, 1002 n.2 (9th

Cir. 2000) (“[T]he Constitution can limit the discretion of

federal officials such that the FTCA’s discretionary function

exception will not apply.”). Once having chosen to use a

drug test to establish probable cause, law enforcement

officials are not free to disregard the test kit’s mandatory

testing protocol; to conclude that they have probable cause

based on a result obtained in violation of the protocol; to

arrest and imprison a person in reliance on the result of the

improperly performed test; and then to hide behind the

discretionary function exception when it turns out that the test

result was erroneous.

C. Panel Majority Mistakes

The panel majority makes mistakes of law and of fact.

NIEVES MARTINEZ V. UNITED STATES 45

1. No General Presumption of Discretion for Actions of

Law Enforcement Officials

The panel majority writes that actions of law enforcement

officials during a criminal investigation are presumed to be

discretionary. Quoting selectively and combining phrases

from different parts of our opinion in Gonzalez, the panel

writes:

Here, the agents were acting to carry out a

criminal investigation when they detained the

Nieves family. Because “[t]he investigation

of crime involves policy judgments at the core

of the executive branch[,]” the court presumes

that the “agent[s’] acts are grounded in policy.

Gonzalez v. United States, 814 F.3d 1022,

1028, 1032 (9th Cir. 2016).

Maj. Op. at 23. The panel majority is mistaken as a matter of

law. Contrary to the view of the majority, there is no

presumption that actions of law enforcement officials, as

distinct from the actions of other federal officials, are

discretionary.

We did write in Gonzalez that “[t]he investigation of

crime involves policy judgments at the core of the executive

branch.” 814 F.3d 1032. This is of course true as a general

matter. But it is not true for all conduct during criminal

investigations. Indeed, after making this general statement in

Gonzalez, we went on to consider whether the specific

challenged conduct was “the type of conduct to which a

policy analysis could apply.” We did not conclude that

because the conduct took place during a criminal

investigation it was presumptively discretionary. Id. at 1033.

46 NIEVES MARTINEZ V. UNITED STATES

We also wrote in Gonzalez that there is a presumption of

discretion—indeed, a “strong presumption”—when a

regulation authorizes an action that itself allows discretion.

But we did not write that the presumption applies to the

actions of federal law enforcement officials, as distinct from

those of other federal officials. What we wrote, instead, was:

“According to the Court, ‘if a regulation allows the employee

discretion, the very existence of the regulation creates a

strong presumption that a discretionary act authorized by the

regulation involves consideration of the same policies which

led to the promulgation of the regulations.’ Gaubert,

499 U.S. at 324.” Id. at 1028. “Because we conclude above

that the Guidelines permit discretion, a ‘strong presumption’

arises that the FBI’s actions were grounded in policy

considerations.” Id. at 1032 (emphasis added).

Contrary to the view of the panel majority, there is no

presumption of discretion that the manner in which Agent

Mendez performed the drug test was discretionary. His

decision to test the windshield washer fluid with the drug test

kit was discretionary. But the manner of implementing his

discretionary decision—performing the drug test—was not

discretionary. The test kit contained specific and

unambiguous instructions that Mendez was required to

follow.

2. Mandatory Drug Test Kit Protocol

The panel majority makes two mistakes of fact.

First, the panel majority concludes incorrectly that Agent

Mendez detected methamphetamine in the windshield washer

fluid. It writes, “At least one field test kit used on the

vehicle’s windshield wiper liquid tested positive for

NIEVES MARTINEZ V. UNITED STATES 47

methamphetamine.” Maj. Op. at 20. This is incorrect. Even

if Test A had been performed properly (which it was not), it

would have indicated only the potential presence of

methamphetamine. Test A revealed only that either

methamphetamine or amphetamine might be present. A

further test—Test U—was required to determine which of the

drugs (if either) was present. Agent Mendez never performed

Test U.

Second, the test kit instructions established a mandatory

protocol for testing. The majority describes the test kit as

only “contain[ing] a warning indicating they were not

designed for liquid samples but that liquids could be tested

‘by placing the tip of . . . a 1 cm square (roughly 1/2” square)

piece of paper into the liquid[]’ and then air drying the liquid

sample.” Maj. Op. at 15. The panel majority writes, “[N]o

evidence suggests that the agents neglected a mandatory

protocol when they field tested the windshield wiper fluid.”

Id. at 15. This is incorrect.

As recounted above, the instructions prescribed a specific

protocol for testing a liquid. The instructions were emphatic

as to the type of paper to be used: “The choice of paper is

critical. Unscented, uncolored filter paper is ideal. NEVER

use brown paper, hand towels or newsprint.” (Emphasis in

original.) The panel majority fails to mention this instruction.

Agent Mendez admitted in his testimony that he used a paper

hand towel, in direct violation of the protocol:

Q: And you stated that you used a paper

towel; is that correct?

A: Yes.

48 NIEVES MARTINEZ V. UNITED STATES

Q: What kind of paper towel was it?

A: Like a brand? You’re asking me a brand

or—it was a paper towel. I opened up a

package and I used one of those.

Q: You mean by paper towel one of those

towels you use to rinse your hands or dry your

hands?

A: Yeah.

The panel majority also maintains that Test U was not

required if Test A was positive. It writes, “The test

instructions do not state that further tests are mandatory, only

that they should be performed in sequence if performed at

all.” Maj. Op. at 15. This, too, is incorrect. The test kit

instructions specify that Test A is not a “standalone” test.

Even assuming (contrary to the evidence) that Agent Mendez

had performed Test A properly and that the result was

reliable, a positive result from Test A could establish only the

presumptive presence of either methamphetamine or

amphetamine. A further test—Test U—was required to

determine which of the two substances, if either, was present.

The instructions specify:

EXAMPLE: Beginning with Test A, a suspect

material sequences from orange to brown

within 10 to 12 seconds. . . . Test U comes

next in sequence. A blue result in Test U

confirms the presence of Methamphetamine.

A reddish-pink or negative result in Test U

indicates an Amphetamine-type compound.

NIEVES MARTINEZ V. UNITED STATES 49

Only by following the proper sequence of tests

from A to U is a positive result obtained.

(Emphasis added.) If Mendez had performed Test U, the test

would have revealed that neither methamphetamine nor

amphetamine was present in the windshield washer fluid.

The magistrate judge wrote, “A reasonable trier of fact

could find that the agents . . . failed to perform the U test,

without which, the test had no scientific value.” (Emphasis

added.) I would state the matter more emphatically. As

noted above, Agent Mendez testified that the photographs

introduced into evidence showed all of the tests that had been

performed on the windshield washer fluid. There was no

photograph showing that Test U had been performed. As a

consequence, a reasonable trier of fact would be required to

find that the agents failed to perform the U test, without

which the test had no scientific value.

Conclusion

Agent Mendez made a discretionary decision, as part of

his criminal investigation, to use a field drug test kit to test

the windshield washer fluid in the Nieveses’ SUV. The kit

specified a mandatory protocol for testing fluids for drugs.

Mendez did not have discretion to ignore that protocol.

Mendez failed to follow the mandatory protocol when he

performed Test A, and he failed entirely to perform the

mandated Test U.

After negligently performing the drug test, Agent Mendez

reported erroneously to Agent Casillas that the drug test had

detected methamphetamine. Casillas arrested Nieves on the

assumption that methamphetamine had been found, and the

50 NIEVES MARTINEZ V. UNITED STATES

Government then criminally charged him with smuggling

methamphetamine. Nieves, an innocent man, was imprisoned

for forty days based on Mendez’s mistake. Because Mendez

failed to follow the mandatory protocol of the drug test kit,

the discretionary function exception is not available as a

defense.

I strongly but respectfully dissent.