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.