Denson v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 15, 2009
No. 05-15572 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 98-07256-CV-KMM

JANNERAL DENSON,
JORDAN L. TAYLOR, a minor, Janneral Denson,
Guardian,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,
JOHN & JANE DOES, certain unnamed United States
Customs Agents,
individually and in their official capacities as
United States Customs Agents,
PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY,
d.b.a. Jackson Memorial Hospital,
IRA CLARK, individually and as President/Director
of Jackson Memorial Hospital,
JOHN & JANE DOES, DRS., certain unnamed Doctors
and Nurses employed by Jackson Memorial Hospital,
individually and in their official capacities as
Doctors and Nurses employed by Jackson Memorial
Hospital, et al.,

Defendants-Appellees.
 ________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(July 15, 2009)

Before TJOFLAT, CARNES and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

This case arose when Janneral Denson and Jordan L. Taylor sued the U.S.

Customs Service, Customs Inspectors Cheryl Friedland and Lee Lavenka, and

several members of the Jackson Memorial Hospital medical staff under Bivens v.

Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619

(1971), and the Federal Tort Claims Act.1 Denson claimed that the Customs

inspectors violated her rights under the U.S. Constitution and Florida tort law by

searching her at the Fort Lauderdale International Airport after she arrived aboard a

flight from Jamaica on the purported suspicion that she was attempting to smuggle

1
See Federal Tort Claims Act (FTCA), Pub. L. No. 79-601, §§ 401–424, 60 Stat. 812,
842 (1946) (codified as amended in scattered sections of 28 U.S.C.). Bivens and FTCA claims
are brought against separate defendants. Bivens claims are brought against federal employees in
their individual capacities; FTCA claims are brought against the United States. In this matter,
the plaintiffs combined the claims in a single complaint. For ease of discussion, we refer to the
Bivens and FTCA claims as separate cases.

2
narcotics into the United States inside her alimentary canal.2 She also claimed that

the inspectors and the hospital’s medical staff violated the same rights by utilizing

certain invasive procedures at the hospital in an effort to determine whether she

was carrying drugs internally. The United States District Court for the Southern

District of Florida entered judgment in favor of the defendants in both actions, and

Denson and Taylor appeal. We affirm.

I.

A.

South Florida is a notorious entry point for narcotics smugglers from source

countries, such as Jamaica. To maximize its ability to detect these smugglers, the

U.S. Customs Service employs a dyadic checkpoint configuration at South Florida

airports. This system requires each deplaning passenger to first pass through a

primary checkpoint, located just past the baggage carousel, where inspectors

perform inspections of passenger documents and ask routine questions concerning

the purpose of the passenger’s trip. If nothing appears out of the ordinary, the

inspector clears the passenger for entry into the United States. On the opposite end

of the room, between the primary checkpoint and the main terminal, Customs

2
The alimentary canal is also known as the gastrointestinal tract or the digestive tract.
After an external examination of Denson’s body failed to reveal any contraband, the hospital
staff gave Denson a laxative to discover whether she was carrying drugs internally. They
discovered that she was not.

3
inspectors operate a secondary Customs station to scan the entire concourse and

note any unusual or suspicious activities or behaviors that might warrant further

investigation. For instance, Customs trains its inspectors to mind when a

passenger is traveling without checked baggage because internal narcotics couriers

commonly travel without luggage to minimize the amount of time they have to

remain in Customs.

At 6:00 p.m. on Wednesday, February 12, 1997, Janneral Denson, a six-

months’ pregnant American citizen residing in Boynton Beach, Florida, traveled on

Air Jamaica flight 36 from Miami, Florida to Kingston, Jamaica. The nonstop

flight lasted one hour and forty minutes and landed at 7:40 p.m. Less than two

days later, on the afternoon of February 14, 1997, Denson returned to the United

States via Air Jamaica flight 89, arriving at the Fort Lauderdale International

Airport around 3:30 p.m. Denson had originally been scheduled to arrive at the

Miami International Airport at 1:25 p.m., but Air Jamaica canceled her original

flight and rerouted her to Fort Lauderdale, where it planned to provide her ground

transportation to her car in Miami.

Because of its point of departure, Customs inspectors in Fort Lauderdale

were on high alert when Air Jamaica flight 89 arrived. Consistent with Customs

procedures and directives, after deplaning and clearing immigration, Denson

4
provided her declaration form to a Customs inspector stationed at the airport’s

primary checkpoint and answered several standard questions about her trip.

Satisfied with Denson’s responses, the inspector cleared her for entry into the

United States. From the vantage point of the secondary inspection area, Senior

Customs Inspector Cheryl Friedland noticed Denson, a single traveler carrying no

checked luggage, quickly exiting the Customs area and avoiding her eye contact.

Her suspicions peaked, Friedland hurriedly walked toward Denson and called out

to her. Though Denson stood no more than five feet away from Friedland, she did

not respond and appeared to ignore Friedland’s efforts to stop her. After catching

up with Denson, Friedland escorted her to the secondary Customs station for

questioning.3

Once at the examination area, the obviously pregnant Denson had trouble

answering Friedland’s routine questions and exhibited signs of

nervousness—Denson held tightly to the x-ray machine to avoid shaking,4 avoided

eye contact, was breathing heavily, and sweating profusely. Based on her training

and experience, Friedland identified Denson’s behaviors and general demeanor as

indications that Denson was attempting to hide contraband. Friedland also took

3
The secondary station area consisted of a computer terminal and an x-ray machine for
examining luggage and other items.
4
Denson was holding onto the belt that fed items into the machine.

5
into account the infamous fact that drug dealers frequently recruit pregnant women

as internal drug couriers (“mules”) because x-ray examinations may not be

performed on a pregnant woman for fear of harming the unborn child.

Friedland began interviewing Denson by asking her about the purpose of her

trip to Jamaica. Denson responded that she had flown to Jamaica to visit her

husband, Richard Scott, but she was initially unable to recall where he lived. After

pausing for a few moments, Denson simply stated that her husband lived in a

parish in Jamaica. Friedland next asked Denson how she contacted her husband.

Denson replied that she contacted him by telephone, but she could not remember

his phone number. Friedland next examined Denson’s tickets and took note that

they had been purchased only four days prior to Denson’s departure and that the

duration of her trip to Jamaica was extremely brief, approximately one and a half

days. Friedland considered this factor significant because internal narcotics

smugglers often take short trips to limit expenses and increase the overall

profitability of their trip.

Friedland then asked Denson how she acquired her plane ticket and who

paid for it; she replied that she did not know. When asked again, Denson, after

some hesitation, stated that a man named Osmond purchased her ticket, but she did

not know his last name. When asked about her employment, Denson said that she

6
worked for Office Depot. She then gave Friedland a telephone number that she

claimed was her work number. Friedland called only to discover that the number

had been disconnected. These responses significantly heightened Friedland’s

suspicions that Denson was attempting to smuggle drugs into the United States.

Among other things, third-party booking, like that provided for Denson, is a

familiar method smugglers employ to avoid revealing their identity; additionally,

Customs trains its inspectors to take note when persons provide unverifiable

employment information, as narcotics smugglers are often unable to provide such

specific information.

Friedland proceeded to search through Denson’s belongings—a manila

folder, a purse, and a small carry-on bag. Of note, Denson had in her possession

two new $100 bills and six $1 bills,5 a marriage register of the marriage between

herself and Scott, an affidavit of citizenship in lieu of a passport,6 and a tablet of

paper containing the following hand-written information about her husband that

5
Customs inspectors know that drug smugglers often travel with one-hundred dollar
bills.
6
At this time, United States citizens were permitted to travel to Jamaica with an affidavit
of citizenship. Denson obtained her affidavit from a notary employed by Skycaps International
at the Miami International Airport. Friedland had not previously encountered this type of travel
document.

7
appeared to be a cover story written for Denson by a third party:7

Richard Scott – Poultry Farmer Since 1994

Lives @ Belfast Near Morant Bay in the Parish of Saint Thomas

His birthday is: Feb. 17th (Born 1972)

How you met.

Dec. 1995 A friend invited you to Jamaica while there went to the

beach Dunns River met him there

Dec. 1996 He visited you at your friends Saint Anne home you invited

him at his Saint Thomas home

*You had no prior knowledge of him

You returned home to Florida – Telephone Exchange

*Always used calling cards – Price Reasons

March 1996 You went down to visit him in Jamaica.

Oct. 1996 You went back to marry him

*His phone number written down at home 809 something

You are not good with remembering numbers.

7
Denson testified at trial that she was also carrying immigration application documents
for Scott and pictures of her wedding and that she informed Friedland that the purpose of her
visit was to meet with Jamaican immigration officials. Friedland disputed these assertions. We
additionally note that the immigration documents plaintiff introduced at trial were issued by the
United States government and were to be filed with the U.S. Immigration and Naturalization
Service, not Jamaican authorities.

8
 *NOT HIS PHONE ANYWAY Neighbors’ Phone.

ANY OTHER Questions Just answer something

in that case try to remember what you were asked and what you

answered.

*DOES HE HAVE RELATIVES OR FRIENDS IN THE U.S. THAT

YOU KNOW OF ---NO---

When asked who wrote the document, Denson said that she did not know.8

As part of the inspection process, Friedland queried the Treasury

Enforcement Communications System (TECS)9 computer data base for any

information concerning Denson. The query returned a TECS alert stating the

following:

REFER TO CUSTOMS FOR ENFORCEMENT EXAM.

ACQUIRED TRAVEL DOCUMENTS SHORTLY BEFORE

DEPARTURE. MATCHES HI RISK NARCO-TARGETING

8
Friedland immediately asked Denson to write down the answers to her questions on her
tablet of paper so that Friedland could compare the handwritings. The handwriting samples did
not match. At the hospital the next evening, Denson informed Friedland that she had in fact
written the document and that it appeared to be written by someone else because she had seven
different handwritings. At trial, Denson said that she did not write the script but that Osmond
wrote it for her.
9
TECS is a computerized system that displays if a person entering the United States is
on terrorist alert, suspected of narcotics trafficking or money laundering, a probation violator,
has any outstanding warrants, or is in violation of other laws.

9
 INDICATORS. (IF ARRIVING FROM A SOURCE COUNTRY).

Customs Inspector Katherine Romanac entered the TECS alert at the Miami

International Airport on November 1, 1996. For a ninety-day period thereafter,

inspectors would automatically refer Denson to a secondary inspection station were

she to arrive in the United States from a source county. Though the original

ninety-day lookout for Denson expired on January 30, 1997, the TECS report

remained in the system for one year and continued to have significance in

assessing whether Denson was smuggling drugs into the United States.

After further questioning, Denson told Friedland that she had traveled to

Jamaica with a friend, Shelita Jacobs. Denson also stated that she had visited with

another friend, Coreen, in Jamaica, but could not recall her last name. Friedland

was unable to confirm in the computer database that Jacobs had been traveling

with Denson. At this point, based on her twenty-one years of experience as a

Customs inspector, Friedland concluded that Denson was likely carrying narcotics

inside her body.

Approximately fifteen minutes after Friedland completed her questioning,

Denson requested to use the restroom. Friedland consented, but because she was

aware that narcotics couriers frequently try to dispose of narcotics in the restroom,

10
Friedland, with supervisory approval, conducted a routine Terry10 pat down.

Friedland and Customs inspector Linda Banks then escorted Denson to the

restroom, leaving the stall door open while Denson urinated. Afterwards,

consistent with Customs procedures, Friedland inspected the toilet paper, contents

of the toilet, and Denson’s undergarments to ensure that she was not disposing of

narcotics or other evidence. After they returned from the restroom, Friedland

placed Denson in handcuffs and inventoried her property. Friedland read Denson

her Miranda11 rights and asked her to sign a waiver, which she refused to do.

Friedland then received supervisory approval from then Acting Port Director Lee

Lavenka12 to transport Denson to Jackson Memorial Hospital13 as a suspected

internal narcotics courier. Lavenka based her decision on the totality of the facts

10
See Terry v. Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1880–84, 20 L. Ed. 2d 889
(1968) (holding that an officer may stop an individual and conduct a limited search if the officer
forms a reasonable suspicion that the individual is engaging in, has engaged in, or is about to
engage in illegal activity). Friedland conducted the pat down in the Customs secondary station
search room in the presence of Customs Inspector Linda Banks.
11
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d
694 (1966) (holding that statements made by a suspect in police custody are admissible at trial
only if an officer has informed the suspect of his right to counsel and his right against self-
incrimination and the suspect knowingly waived those rights).
12
Levenka was a Supervisory Customs Inspector acting as Port Director in the Director’s
temporary absence.
13
The U.S. Customs Service and Jackson Memorial Hospital had a standing arrangement
whereby the hospital provided medical services to patients whom Customs suspected of
smuggling contraband internally. Several inspectors also staffed an office Customs maintained
at the hospital.

11
and circumstances as gathered and reported by Friedland. Shortly thereafter,

Customs inspector Selwyn Smith drove Friedland, Banks, and Denson to Jackson

Memorial Hospital in Miami, located approximately twenty miles away from the

Fort Lauderdale airport.

After arriving at the hospital’s custody ward (“Ward D”), intake staff

photographed Denson and had her change into hospital clothes. Friedland, Smith,

and a hospital technician then escorted Denson to the maternity ward for an

examination. At the registration desk, Denson refused to sign a treatment consent

form, stating that she would not be responsible for paying any bill resulting from

her stay. After Denson provided a urine sample to confirm her pregnancy, the

hospital staff placed her in a hospital bed and Friedland handcuffed her to the bed

rail.

With Friedland present, an obstetrician examined Denson by performing a

pelvic examination and an obstetrical ultrasound. Though the examinations were

negative for drugs, they did not rule out the possibility that Denson was smuggling

drugs in her alimentary canal.14 Because physicians cannot perform x-ray

examinations during pregnancy, Friedland and Smith returned Denson to Ward D

14
Friedland informed Lavenka of the negative pelvic exam and Lavenka authorized
Denson’s continued detention for monitored bowel movements.

12
for monitored bowel movements.15

Under the standard protocol Jackson Memorial Hospital established in

conjunction with the U.S. Customs Service, Denson was required to pass three

separate drug-free stool samples. To help induce the bowel movements, a doctor

prescribed Denson the laxative GoLytely.16 After drinking the laxative, Denson

had three drug-free bowel movements, the last of which occurred on February 16,

1997, at 9:45 a.m.17 Thereafter, Customs Inspector Ganz informed Denson that she

was to be released and proceeded to remove Denson’s handcuffs and allowed her

to dress. Hospital staff discharged Denson and Inspectors Friedland and Peggy

Neaves drove her back to the Fort Lauderdale International Airport. At the airport,

Denson retrieved her property and continued on her way. On February 28, 1997,

Denson gave birth to Jordan L. Taylor.

15
Arriving at Ward D, Friedland again handcuffed Denson to the bedrail in her room.
16
Denson testified at trial that Friedland told her that she had to drink the laxative and
pass three clear stools or she was not going to be able to leave. When Denson expressed concern
about taking the laxative, Friedland responded that the doctors would not have prescribed her
medication that they did not think she could have. Friedland denied making these statements.
17
Inspector Smith’s shift ended shortly before midnight on February 14; he did not have
further contact with Denson. While it is unclear from the record when Friedland left the hospital
on the night of the 14th, she returned the next afternoon and supervised Denson’s second bowel
movement at 4 p.m. Friedland’s shift ended later that evening; she returned the next morning,
February 16, to transport Denson back to the airport following her release.

13
 B.

1.

Denson brought this lawsuit on November 12, 1998.18 Her complaint19

named as defendants Vince Priore, U.S. Customs Service Port Director for the Fort

Lauderdale International Airport, Lee Levenka, Supervisory Customs Inspector,

and Dennis Flynn and Cheryl Friedland, Customs Inspectors (collectively the

“Federal Defendants”),20 the United States, Jackson Memorial Hospital21 and Ira

Clark, its president (collectively the “Hospital”), and seven physicians22 and six

18
Denson brought the suit individually and as guardian of Jordan L. Taylor. Under
Florida law, a child who suffers prenatal injuries and is born alive has an independent cause of
action against the alleged tortfeasor. Day v. Nationwide Mut. Ins. Co., 328 So. 2d 560, 562 (Fla
2d DCA 1976). Nevertheless, since Jordan Taylor’s tort claims are derivative of his mother’s
claims, we will focus on the allegedly tortious treatment of Denson.
19
We refer to Denson’s Second Amended Complaint as the complaint. It was filed after
a panel of this court reversed the district court’s dismissal of the Hospital and the Hospital
Defendants from the case and directed the district court to grant Denson leave to amend her
complaint. Denson v. United States, 209 F.3d 724 (11th Cir. 2000) (unpublished table decision).
20
The complaint sought damages against the Federal Defendants in both their individual
and official capacities. The district court, in its orders finally disposing of the claims in this
case, made no mention of the claims against the Federal Defendants in their official capacities.
We thus assume that the court denied those claims sub silentio. In their briefs on appeal, the
parties do not mention them.
21
Although the complaint named Jackson Memorial Hospital as a defendant, the
complaint was served appropriately on Public Health Trust of Dade County, d/b/a Jackson
Memorial Hospital.
22
The physicians were Drs. John Bennett, Alexander Amadio, Ricardo Presas, Maurizio
Sepe, Jose Hernanedez, Gerald Kratz, and Lynn P. Carmichael.

14
nurses23 on the hospital’s staff (collectively the “Hospital Defendants”). Denson’s

eleven-count complaint is a prolix, discursive pleading that combines causes of

action and theories of recovery in such a way as to make it exceedingly difficult, if

not impossible, to grasp precisely the claims being asserted. Reading the

complaint in the light most favorable to Denson, we find that it presents and lumps

together, in its eleven counts, a host of claims under the Constitution and Florida

tort law.24

The first eighty-two paragraphs of the complaint contain allegations that

apply to each of the eleven counts. These paragraphs detail the events that

transpired from the moment Inspector Friedland stopped Denson, after Denson

cleared the primary Customs checkpoint at the airport, to the birth of Jordan.

Count I incorporates the eighty-two paragraphs by reference; Counts II through XI

incorporate by reference all antecedent allegations, such that each count consists of

an amalgamation of all previous counts and causes of action.25

23
The nurses were Illeana Hollant, Marie Prospere, Kenneth Reynauld, Gary Thompson,
Doreen Simmons, and Gretchen Betlem.
24
Denson brought the claims against the Federal Defendants under 28 U.S.C. § 1331,
the claims against the United States under 28 U.S.C. §§ 1331 and 1346(b)(1), the federal law
claims against the Hospital Defendants and the Hospital under 28 U.S.C. §§ 1331 and 1343, and
the state law claims against the Hospital and Hospital Defendants under 28 U.S.C. § 1367.
25
As indicated in the text following this footnote, the first 82 paragraphs of the
complaint charge all of the defendants with every violation of the U.S. Constitution and Florida
tort law that Denson allegedly suffered. Each numbered count, by incorporating those 82

15
 The first eighty-two paragraphs of the complaint allege (1) that the conduct

of the Federal Defendants constituted “false arrest, false imprisonment, intentional

infliction of emotional distress, unlawful search and seizure, and unlawful invasion

of privacy, under the laws of the State of Florida” and the “Fourth, Fifth, Eighth,

and Fourteenth Amendments” of the Constitution, and discrimination on the basis

of “race and ethnicity . . . in violation of the laws of Florida and the Fourth and

Fifth Amendments,” and (2) that the conduct of the Hospital Defendants

constituted “assault, battery, false imprisonment, intentional infliction of emotional

distress, unlawful search and seizure, unlawful invasion of privacy, and medical

negligence under the laws of Florida . . . and “deliberate[] indifferen[ce] to

[Denson’s] serious medical needs . . . in violation of the Fifth, Eighth and

Fourteenth Amendments.” These eighty-two paragraphs also allege that

“Defendants, and each of them, authorized and ratified the wrongful acts of the

other individual defendants and were willful participants in the joint activity,” all

of which deprived Denson of her rights under Florida tort law and the federal

constitution.

paragraphs by reference, therefore asserts all of these violations. In an effort to eliminate the
intractable problem of isolating Denson’s claims and reducing them to their bare essentials, we
have limited the claims presented in the several counts by using the counts’ headings, e.g., Count
I, “Assault and Battery.”

16
 The counts alleged in the complaint are as follows: Count I, “Assault and

Battery,” brought against the Hospital Defendants, alleges that their physical

contact with Denson at the hospital constituted assault and battery; Count II,

“Medical Negligence,” alleges that the Hospital Defendants breached the duty to

provide Denson with appropriate medical care; Count III, “Medical Negligence,”

alleges that the Hospital is vicariously liable for the negligence of the Hospital

Defendants; Count IV, “Apparent Agency,” alleges that the Hospital is vicariously

liable for the acts of the Hospital Defendants; Count V, “Non-Delegable Duty,”

alleges that the Hospital is liable for the acts of the Hospitable Defendants because

the duties of those defendants were non-delegable; Count VI, “42 U.S.C. § 1983

and § 1985 Claims,” brought against the Hospital Defendants, alleges that, while

acting under the color of state law and in concert, they unlawfully searched, seized

and detained Denson with excessive force, depriving her of her liberty and due

process of law, all in violation of her rights under the Fourth, Fifth, Eighth, and

Fourteenth Amendments; Count VII, “42 U.S.C. § 1983 and § 1985 Claims,”

alleges that the Hospital is vicariously liable for the conduct described in Count VI;

Count VIII, “Assault and Battery,” alleges that the Federal Defendants “brutally,

willfully, maliciously and without any excuse or justification . . . callously and

recklessly . . . disregarded [Denson’s] safety and continued life” in violation of

17
Florida tort law; Count IX, “Constitutional Violations Claim,” which we construe

as a Bivens claim,26 alleges that the Federal Defendants, acting in concert, deprived

Denson of her Fourth Amendment rights to be free from unreasonable searches and

seizures, excessive force, and unlawful detention and her Fifth Amendment rights

to the equal protection of the laws, due process of law, the right of privacy,

freedom of association, and the right to seek redress for injury; Count X,

“Constitutional Violations Claim,” another Bivens claim, alleges that U.S.

Customs Service Port Director Priore, acting under color of state and federal law,

failed appropriately to “train, supervise and/or discipline” the Federal Defendants

and, therefore, is liable for the constitutional violations asserted in Count IX; and

Count XI, “Claim under the Federal Tort Claims Act,” alleges that the United

States is amenable to suit under the Federal Tort Claims Act (FTCA),27 because the

Federal Defendants subjected Denson to “warrantless detention, searches,

handcuffing, assault, battery, forced medication and improper treatment” in

violation of Florida tort law and the Fourth, Fifth, Eighth, and Fourteenth

Amendments to the Constitution.28

26
See supra note 1.
27
See supra note 1 and accompanying text.
28
Count XI’s assertions that the Federal Defendants infringed Denson’s rights under
these constitutional amendments duplicated Count IX’s Bivens claims. And, moreover, it was
inappropriate to place these constitutional allegations in Count XI because the FTCA does not

18
 The U.S. Attorney responded to the complaint on behalf of the United States

and the Federal Defendants29 by filing an answer, which denied paragraph by

paragraph the allegations of unlawful conduct.30 As an affirmative defense, the

answer asserted that, with respect to the constitutional claims of Counts IX and X,

the Federal Defendants were entitled to qualified immunity. The Hospital and

Hospital Defendants responded by moving the court to grant them summary

judgment on all claims.31 Regarding the § 1983 claims asserted in Counts VI and

VII, these defendants contended that they were entitled to qualified immunity.

On January 29, 2002, the district court entered an order disposing of all

provide jurisdiction for redress of constitutional torts.
29
The U.S. Attorney’s Office for the Southern District of Florida represented both the
United States on Count XI, and the Federal Defendants on Counts IX and X, respectively.
30
Given the manner in which Denson pled her complaint, the U.S. Attorney and the
district court understandably had difficulty discerning which claims of which counts fell within
the ambit of the FTCA, which claims were based on violations of Florida tort law, and which
were based on violations of the U.S. Constitution. As a result, the U.S. Attorney had the United
States substituted under the FTCA with respect to claims not covered by the FTCA, i.e.,
constitutional claims against the Federal Defendants. For example, the district court at some
point during the litigation incorrectly combined Count IX, based on the U.S. Constitution with
Count XI, based on Florida tort law and the U.S. Constitution, and substituted the United States
as the defendant. The court treated Count X, a negligence claim against Priore, as a
constitutional claim, and therefore did not substitute the United States for Priore as the defendant
in that count. In this opinion, we have treated as claims against the United States only those
asserting liability under Florida tort law.
31
These defendants also moved the district court to dismiss Denson’s claims under Fed.
R. Civ. P. 12(b)(6). We are unable to determine from the record whether the court ever ruled on
the motion.

19
pending motions for summary judgment.32 The court granted summary judgment

on Count I,33 part of Count VI,34 Counts VII and VIII,35 part of Count IX,36 and

32
In addition to disposing of the defendants’ motions for summary judgment, the court
struck the complaint’s references to 42 U.S.C. § 1985 because none of the complaint’s
allegations supported a claim under § 1985.
33
The court granted summary judgment in favor of the Hospital Defendants on the
ground that Fla. Stat. § 768.28 granted them immunity. See Jaar v. Univ. of Miami, 474 So. 2d
239, 245 (Fla. 3d DCA 1985) (applying § 768.28 immunity to doctors employed by the Public
Health Trust of Miami Dade County d/b/a Jackson Memorial Hospital).
34
The district court disposed of the Count VI claims as follows: it dismissed (1) the
claims Denson brought as guardian of Jordan L. Taylor; (2) the claims brought under 42 U.S.C.
§ 1985 against the Hospital and Hospital Defendants (for failure to prove a conspiracy among
any of them); (3) the claims brought under 42 U.S.C. § 1983 against the Hospital and Hospital
Defendants for non-consensual medical treatment; and (4) the claims brought under § 1983
against Drs. Amadio, Presas, Sepe, Hernandez, and Kratz and nurse Betlem for deliberate
indifference to Denson’s serious medical needs. The court granted in part and denied in part
nurse Simmons’s motion for summary judgment, dispositions we treat together as the denial of
summary judgment. The court denied Dr. Bennett and nurses Hollant and Prospere summary
judgment, and, for reasons not apparent in the January 29 order, did not rule on whether Dr.
Carmichael or nurses Reynauld and Thompson were entitled to summary judgment.
35
The court granted summary judgment on Count VIII, the assault and battery claims
against the Federal Defendants, on the ground that, at the time of the alleged assault and battery,
the Federal Defendants were acting within the scope of their authority; therefore, the United
States should be substituted as the defendant in lieu of the Federal Defendants. Because the
Count XI claim against the United States was based in part on Count VIII’s assault and battery
allegations, the court found no need for Count VIII. Rather than dismissing Count VIII as
duplicative of Count XI, however, the court granted the Federal Defendants summary judgment
on Count VIII. The court apparently overlooked the fact that Count XI not only alleged assault
and battery claims against the Federal Defendants, which were covered by the FTCA, but
Fourth, Fifth, Eighth, and Fourteenth Amendment claims against them as well, which were not
covered by the FTCA (because they were not based on Florida tort law) and which the United
States therefore had no obligation to defend. Nonetheless, the U.S. Attorney assumed, albeit
erroneously, that the United States could be held liable on those constitutional claims under the
FTCA and, therefore, undertook to defend them on behalf of the United States.
36
The court granted the Federal Defendants summary judgment on Denson’s claim as
guardian of Jordan L. Taylor and on Denson’s claim that the luggage search and pat down at the
second Customs checkpoint infringed Denson’s constitutional rights.

20
Count X, and denied summary judgment on Counts II through V 37 and part of

Count VI, as it related to four of the Hospital Defendants, Dr. Bennett and nurses

Hollant, Prospere, and Simmons (the “Four Hospital Defendants”), and part of

Count IX.38 In denying the Four Hospital Defendants summary judgment on Count

VI, the court declined to pass on the question of whether they were entitled to

qualified immunity.

2.

The Federal Defendants appealed the January 29 order,39 arguing that the

district court erred in denying them qualified immunity as to the Bivens claims

asserted in Count IX. The Hospital and the Hospital Defendants also appealed,

arguing that the court erred in denying them summary judgment on Counts II

through V. Additionally, the Four Hospital Defendants appealed on the ground

that the court erred in failing to address whether they were entitled to qualified

37
The Hospital Defendants argued that the district court lacked subject matter
jurisdiction to entertain these claims. The district court disagreed, concluding that it had
supplemental jurisdiction under 28 U.S.C. § 1367 to litigate the claims; it therefore denied the
Hospital Defendants’ motion for summary judgment.
38
The court denied summary judgment on the claim that Federal Defendants Friedland,
Lavenka, and Flynn infringed Densons’ constitutional rights in conducting the bathroom search
at the airport and the pelvic examination at Jackson Memorial Hospital and in detaining Denson
at the hospital for 24 hours. The court did not pass on the question of whether these three
defendants were entitled to qualified immunity.
39
The Federal Defendants filed their notice of appeal on March 28, 2002. Because the
United States is a party in the case, their appeal had to be filed within 60 days of the entry of the
January 29 order. See Fed. R. App. P. 4(a)(1)(B).

21
immunity on Count VI. Denson cross appealed, arguing that the court erred in

granting any of the defendants summary judgment.

In an order entered on July 12, 2002, a panel of this court granted Denson’s

motion to dismiss the Hospital and Hospital Defendants’ appeal of the district

court’s denial of summary judgment on Counts II through V. On January 29,

2003, the panel affirmed the district court’s rulings on Count IX and, with respect

to Count VI, remanded the case with instructions that the district court consider

whether the Four Hospital Defendants were entitled to qualified immunity. See

Denson v. United States, 61 F. App’x 669 (11th Cir. 2003) (unpublished table

decision).

On remand, the district court, in an order entered on November 5, 2004,

concluded that the Four Hospital Defendants were entitled to qualified immunity

and granted them summary judgment on Count VI. Since this ruling disposed of

all the remaining bases for the court’s exercise of original jurisdiction on Denson’s

claims against the Hospital Defendants and the Hospital,40 the court declined to

exercise its supplemental jurisdiction over Denson’s remaining state law claims

stated in Counts II, III, IV, and V; thus, it dismissed those counts in its November

40
In its January 29, 2002 order, the district court granted the Hospital summary
judgment on Count VII, over which it had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
Sections 1331 and 1343 also provided the court with jurisdiction to entertain Count VI.

22
5 order.41

Denson appealed the district court’s November 5 order on December 2,

2004. On January 18, 2005, while her appeal was pending, she moved the district

court, pursuant to Federal Rule of Civil Procedure 54(b), to enter a partial final

judgment for the Hospital and Hospital Defendants in conformance with the

rulings the court had handed down in their favor in its orders of January 29, 2002

and November 4, 2004.42 Denson’s motion stated that there was “no just cause for

delay” in entering the partial final judgment; moreover, a judgment, if entered,

would afford Denson an opportunity to obtain “appellate review of the qualified

immunity issues at this time.”43 The court granted her motion, as framed, entering

a partial final judgment for the Hospital and Hospital Defendants on February 16,

41
The November 5 order did not state that the dismissals were without prejudice. We
assume that the dismissals were without prejudice because the order noted that Denson could
continue pursuing her state law claims against the Hospital and Hospital Defendants in the
Circuit Court of Dade County, Florida. See Denson v. Public Health Trust of Dade County,
Case No. 99-3722.
42
Denson moved the district court for the entry of a partial final judgment under Fed. R.
Civ. P. 54(b) because this court had questioned the parties as to whether this court had
jurisdiction to entertain the interlocutory appeal Denson had taken on December 2, 2004. On
March 17, 2005, we dismissed Denson’s interlocutory appeal for lack of an appealable order.
The order of dismissal stated: “The district court’s November 5, 2004 order is not final and
appealable as it does not resolve all claims of all parties, and was not certified for an immediate
appeal pursuant to Fed. R. Civ. P. 54(b).” Denson v. United States, No. 04-16392 (11th Cir.
Mar. 17, 2005).
43
A partial final judgment would also allow appellate review of the part of the
November 5 order dismissing Counts II through V.

23
2005. Denson did not appeal the partial final judgment.

What remained of Denson’s complaint following the entry of the Rule 54(b)

judgment were Count IX, the Bivens claims against Inspectors Friedland, Lavenka,

and Flynn for infringing Denson’s rights under the Fourth and Fifth Amendments,

and Count XI, the FTCA claims against the United States based on Florida tort law

and the Fourth, Fifth, Eighth and Fourteenth Amendments to the Constitution.

3.

On April 18, 2005, the case proceeded to a bifurcated trial on Counts IX and

XI.44 The two counts were tried simultaneously—Count IX to a jury45 and Count

XI to the court. On April 21, after three days of testimony, Denson voluntarily

dismissed her claims against Inspector Flynn for lack of evidence46 and rested her

case on the two counts.47 The U.S. Attorney then moved the district court for

44
By agreement, the parties, with the court’s consent, bifurcated Denson’s claims and
limited the trial to the issues of liability.
45
Denson had made a timely demand that her Bivens claims be tried to a jury. By
statute, FTCA claims are tried to the bench. See 28 U.S.C. § 2402.
46
Nothing in the pretrial or trial records indicates that Flynn played a role in any way,
directly or indirectly, in any of the events on which Denson based her claims against any of the
defendants named in her complaint.
47
Denson rested her case on Count XI subject to the court’s reception of some
documentary evidence, which she promptly introduced. Such evidence is not material to the
disposition of her appeal of the judgment on Count XI.

24
judgment as a matter of law on both counts.48 He argued for judgment on the

Count IX claims on the ground that Friedland and Lavenka were entitled to

qualified immunity; and he argued for judgment on the Count XI claims on the

ground that Denson had failed to make out a case of liability under Florida tort

law.49 The court reserved ruling on the motion as addressed to Count IX and

denied the motion as addressed to Count XI. Then, after both parties rested, the

district court proceeded to rule on the Count XI tort claims from the bench. The

court found for the United States, and stated that it would memorialize its findings

of fact and conclusions of law in a written order, pursuant to Federal Rule of Civil

Procedure 52(a). Turning to the Bivens claims in Count IX, the court found that

they were barred by 28 U.S.C. § 2676.50 Denson objected to the court’s invocation

48
The U.S. Attorney framed his motions for judgment as a matter of law as motions for
“directed verdicts.” We treat the motions as a Fed. R. Civ. P. 50(a) motion for judgment as a
matter of law on Count IX and as a Fed. R. Civ. P. 52(c) motion for judgment on Count XI. The
motions differ in this respect. A Rule 50(a) motion may be granted in the context here if the
court, taking the evidence in the light most favorable to the plaintiff, concludes that a reasonable
jury could not find for the plaintiff. Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir.
2004) (per curiam). A Rule 52(c) motion may be granted if, in the context here and based on the
evidence before it, the court finds, after resolving the credibility issues and weighing the
evidence, for the defendant. As it turned out, the court did not rule on the Rule 52(c) motion;
instead, after both parties rested, it considered the evidence and made findings of fact and
conclusions of law pursuant to Fed. R. Civ. P. 52(a).
49
Neither the parties nor the district court acknowledged the fact that Count XI included
federal constitutional claims in addition to the Florida law tort claims. Rather, they limited,
albeit tacitly, the constitutional claims to those asserted in Count IX.
50
28 U.S.C. § 2676 provides:

The judgment in an action under [the FTCA] shall constitute a complete bar to

25
of the § 2676 bar on grounds that the bar only applies to cases where the United

States is unsuccessful in defending against the FTCA claim.51

4.

On June 30, 2005, Denson moved the district court, pursuant to Federal Rule

any action by the claimant, by reason of the same subject matter, against the
employee of the government whose act or omission gave rise to the claim.

A majority of courts have construed § 2676 as barring a plaintiff’s Bivens claims, irrespective of
whether the Bivens and FTCA claims were brought in the same lawsuit. Harris v. United States,
422 F.3d 322, 334 (6th Cir. 2005) (“[W]e have held that [§ 2676] applies even when the claims
were tried together in the same suit and the judgments were entered simultaneously.”) (alteration
omitted); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 858 (10th Cir.
2005) (finding that entering judgment on Bivens claim before rendering judgment on FTCA tort
claim is “inconsequential” to the application of § 2676); Farmer v. Perrill, 275 F.3d 958, 962
(10th Cir. 2001) (holding that § 2676 barred Bivens claim because an FTCA claim based on
same subject matter was adjudicated in an earlier proceeding); Rodriguez v. Handy, 873 F.2d
814, 816 (5th Cir. 1989) (“‘The moment judgment was entered against the government, then by
virtue of § 2676, [defendant] was no longer answerable to [claimant] for damages.”’) (quoting
Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir. 1987); Aetna Cas. & Sur. Co. v. United States,
570 F.2d 1197, 1201 (4th Cir. 1978) (“[A] judgment against the United States would
automatically bar the entry of any contemporaneous or subsequent judgment against
[government officials].”).
Most courts have also found that § 2676 does not distinguish between judgments entered
for or against the United States. Trentadue, 397 F.3d at 858 (“[T]he judgment bar in § 2676
precludes plaintiffs from bringing a Bivens claim regarding the same subject matter regardless of
whether the final FTCA judgment is rendered in favor of a plaintiff or the government.”);
Farmer, 275 F.3d at 963 (“Section 2676 makes no distinction between favorable and unfavorable
judgments—it simply refers to ‘the judgment in an action under section 1346(b).’”); Hoosier
Bancorp of Ind., Inc. v. Rasmussen, 90 F.3d 180, 185 (7th Cir. 1996) (“There is no indication
that Congress intended [s]ection 2676 to apply only to favorable FTCA judgments.”). But see
Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992) (holding that § 2676 does not bar a
Bivens claim where the court enters judgment in favor of the United States under the FTCA and
the Bivens claim and FTCA claim are filed “contemporaneously”).
51
Denson did not object to the bar on the ground that it deprived her of her Seventh
Amendment right to a jury trial on her Bivens claims.

26
of Civil Procedure 60(b), to reconsider its November 5, 2004 order, which granted

the Four Hospital Defendants summary judgment on Count VI, and dismissed

Counts II through V. Denson also moved the court to set aside the Rule 54(b)

partial final judgment of February 16, 2005, contending that the judgment was

invalid because it failed to recite that there was “no just reason for delay” in

entering the judgment.

5.

On August 5, 2005, the court issued its findings of fact and conclusions of

law on the Count XI FTCA claims. The court found (1) that Inspector Friedland

had reason to suspect that Denson was carrying narcotics internally; (2) that

Denson’s responses to the questions Friedland put to her heightened Friedland’s

suspicion; (3) that Friedland acted properly in seeking direction from her

supervisor, Lavenka; (4) that, based on what Friedland reported, Lavenka properly

instructed Friedland to take Denson to the Hospital, and (5) that Friedland’s

handling of Denson at the Hospital was consistent with the protocol the U.S.

Customs Service followed in dealing with border entrants, like Denson, suspected

of carrying narcotics internally. The court concluded that, based on these facts,

neither Friedland nor Lavenka committed the state law torts alleged in the

complaint, and that the United States was entitled to judgment on Count XI.

27
 After finding for the United States on Count XI, the district court, on August

22, 2005, entered an order dismissing Count IX on the ground that Denson’s

Bivens claims were barred by 28 U.S.C. § 2676.

On August 24, 2005, the court denied Denson’s Rule 60(b) motion to

reconsider its November 5, 2004 order. On September 2, 2005, the U.S. Attorney

moved the district court for entry of judgment in favor of Friedland and Lavenka

on Count IX, pursuant to its August 22 order dismissing that count. On October 4,

2005, the court, having reserved ruling on Friedland and Lavenka’s motions for

judgment as a matter of law on Count IX, entered an order granting the motions on

qualified immunity grounds. On October 6, 2005, the court entered final

judgments in favor of Friedland and Lavenka on Count IX and the United States on

Count XI. On October 11, 2005, the court denied Denson’s June 30, 2005 motion

to set aside the Rule 54(b) judgment.

6.

On October 12, 2005, Denson appealed the October 6 judgments and the

August 24, 2005 order denying her Rule 60(b) motion for reconsideration of the

court’s November 5, 2004 order. Denson’s appeal of the August 24 order is

meritless, as we explain in the margin,52 and thus unworthy of further comment.

52
Fed. R. Civ. P. 60(b) authorizes a district court to relieve a party from a “final
judgment, order, or proceeding.” As we stated in our March 17, 2005 order dismissing Denson’s

28
We devote our attention, instead, to Denson’s challenges to the October 6

judgments.

II.

A.

Denson brought her Fourth Amendment claims against the Federal

Defendants under Bivens, and state law claims against the United States

(substituted for the Federal Defendants) under the FTCA.53 In Bivens, the

Supreme Court created a remedial scheme to enforce justiciable constitutional

appeal of the November 5 order, the November 5 order was not “final,”and therefore not
appealable, because the order had not resolved “all claims of all parties.” Denson v. United
States, No. 04-16392 (11th Cir. March 17, 2005). The November 5 order was merely tentative.
The district court should have denied Denson’s Rule 60(b) motion for the obvious reason that the
November 5 order was not final. The November 5 order was superceded and, therefore, made
final by the Rule 54(b) judgment entered on February 16, 2005. Denson did not appeal that
judgment. True, she moved the court on June 30, 2005, to set it aside because the order did not
recite the statutory language that there was “no just reason for delay” for granting the motion,
but the court denied the motion. She apparently overlooked the fact that her motion represented
to the district court that there was “no just cause for delay,” and that the court accepted her
representation in granting the motion as framed. Under the circumstances, the fact that the
court’s order granting the Rule 54(b) judgment failed to contain the magic words, “no just reason
for delay,” did not render the judgment invalid. Crowley Mar. Corp. v. Panama Canal Comm.,
849 F.2d 951, 953 (5th Cir. 1998) (holding that district court was not required to recite the
language “no just reason for delay,” because party’s motion contained such language; thus,
district court’s intent in issuing partial final judgment was readily apparent); St. Paul Fire and
Marine Ins. Co. v. Pepsico, Inc., 884 F.2d 688 (2d Cir.1989) (finding that court could exercise
appellate jurisdiction in spite of the district court’s failure to recite the statutory language if the
record demonstrates that the district court could easily have provided acceptable reasons for
granting the motion).
53
Denson also claimed that the Federal Defendants infringed her rights under the Fifth
and Eight Amendments to the Constitution. In her brief, she does not mention those
amendments; thus, we treat her Fifth and Eight Amendment claims as abandoned.

29
rights. See Bivens, 403 U.S. at 395, 91 S. Ct. at 2004–05 (finding that victims of

constitutional violations may seek monetary damages against the offending federal

officers). In contrast, the FTCA “is not a federal remedial scheme at all, but a

waiver of sovereign immunity that permits an injured claimant to recover damages

against the United States where a private person ‘would be liable to the claimant in

accordance with the law of the place where the act or omission occurred.’”

Carlson v. Green, 446 U.S. 14, 29 n.1, 100 S. Ct. 1468, 1477 n.1, 64 L. Ed. 2d 15

(1980) (Powell, J., concurring) (quoting 28 U.S.C. § 1346(b)). Although the

FTCA was enacted many years before the Bivens decision came down, when

Congress amended the FTCA in 1974 to permit claimants to bring causes of action

against the United States based on intentional torts committed by law enforcement

officers, see Pub. L. No. 93-253, 88 Stat. 50 (1974), Congress indicated that it

viewed the FTCA and Bivens as parallel and complementary causes of action:

[A]fter the date of enactment of this measure, innocent individuals
who are subjected to raids [like those described in Bivens] will have a
cause of action against the individual Federal agents and the Federal
Government. Furthermore, this provision should be viewed as a
counterpart to the Bivens case and its progenty [sic.], in that it waives
the defense of sovereign immunity so as to make the Government
independently liable in damages [under state law] for the same type of
conduct that is alleged to have occurred in Bivens (and for which that
case imposes liability upon the individual Government officials
involved).

S. Rep. No. 93-588 (1974), reprinted in 1974 U.S.C.C.A.N. 2789, 2791; Pooler v.

30
United States, 787 F.2d 868, 874 (3d Cir. 1986) (Seitzer, J., concurring) (noting

that Congress crafted the law enforcement proviso amendment to § 2680(h) to be

co-extensive with actions brought under Bivens); see also Carlson v. Green, 446

U.S. at 20, 100 S. Ct. at 1472 (holding that plaintiffs, “[i]n the absence of a

contrary expression from Congress, . . . shall have an action under FTCA against

the United States as well as a Bivens action against the individual officials alleged

to have infringed their constitutional rights”); cf. FDIC v. Meyer, 510 U.S. 471,

485, 114 S. Ct. 966, 1005. 127 L. Ed. 2d 308 (1994) (explaining that the Court

“implied a cause of action against federal officials in Bivens in part because a

direct action against the government was not available [under the FTCA]” to

remedy constitutional tort claims)

As co-extensive causes of action, Bivens and FTCA claims necessarily arise

from the same wrongful acts or omissions of a government official. By the same

token, the same set of facts determines the theories available to the United States in

defending the FTCA case. If a plaintiff sues the official under Bivens, but fails to

establish a constitutional violation, the United States may defend the plaintiff’s

state-law tort claims (based on the Bivens evidence) under two theories. First, the

United States may contend that 28 U.S.C. § 2680(a) of the FTCA strips the district

court of jurisdiction to consider the tort claims because the officer acted within the

31
scope of his discretion when he engaged in the disputed conduct.54 Second, the

United States may contend that the Supremacy Clause of the Constitution bars the

tort claims because the application of the state tort law would impede the officer

from performing his required federal functions. See U.S. Const, art. VI, cl.2

(providing that federal law is the supreme law of the land). However, because

government officials lack discretion to violate constitutional rights, if the Bivens

claim is successful, neither defense would be available to the United States in the

FTCA case. See Medina v. United States, 259 F.3d 220, 225 (4th Cir. 2001)

(noting that the starting point of analysis is the axiom that “federal officials do not

possess discretion to violate constitutional rights or federal statutes”); Red Lake

Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C. Cir.1986)

(“A government official has no discretion to violate the binding laws, regulations,

or policies that define the extent of his official powers.”)55 In the scenario at hand,

54
28 U.S.C. § 2680(a) provides an exception from the government’s waiver of sovereign
immunity for

Any claim 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 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.

55
That the discretionary function exception of § 2680(a) would not be available to the
United States when it is sued under the FTCA is implicit in the Supreme Court’s holding in
Carlson v. Green. By holding that the victim of a constitutional tort committed by a government

32
the availability of these defenses to the United States in the FTCA case depends on

whether the evidence Denson presented against Inspectors Friedland and Lavenka

in the Bivens case was sufficient to withstand their motion for judgment as a matter

of law. Given this consequence, we begin our review of the two cases by assessing

the legal sufficiency of Denson’s Bivens case.

official has “parallel, complementary causes of action” under Bivens and § 2680(h) of the
FTCA, the Court necessarily implied that the discretionary function exception of § 2680(a) does
not apply to bar the district court from adjudicating the FTCA cause of action. See Carlson, 446
U.S. at 20, 100 S. Ct. at 1472. In other words, in committing a constitutional tort, a government
official is not, “exercis[ing] or perform[ing], or . . . fail[ing] to exercise or perform a
discretionary function or duty.” See § 2680(a). Conversely, if the government official’s conduct
does not violate the Constitution (or a federal statute or regulation), the discretionary function
exception may apply and preclude the district court from adjudicating whether the same
evidence that failed to establish that the official violated the Constitution (or a federal statute or
regulation) nonetheless established a tort under state law, e.g., false arrest or false imprisonment.
In Nguyen v. United States, 556 F.3d 1244 (11th Cir. 2009), a case where DEA agents
infringed the plaintiff’s Fourth and Fifth Amendment rights by subjecting the plaintiff to false
arrest and malicious prosecution, a panel of this court suggested that the discretionary function
exception would not apply even had the agents not violated the plaintiff’s constitutional rights.
The plaintiff in Nguyen did not sue the federal agents under Bivens; instead, he sued the United
States under § 2680(h) for false arrest and false imprisonment. Although the facts of the case
demonstrated a clear constitutional violation, the district court dismissed the case under §
2680(a)’s discretionary function exception. This court reversed. Implementing a purposive
approach to statutory construction, see H. Hart & A. Sacks, The Legal Process: Basic Problems
in the Making and Application of Law 1411 (tent. ed. 1958) (William N. Eskridge, Jr. & Phillip
P. Frickey eds., 1994) (arguing that primary concern in statutory construction is to give effect to
the purpose of the statute; not the plain text), this court found that the exception did not apply,
see Nguyen, 556 F.3d at 1256 (“To hold in this case that the discretionary function exception in
subsection (a) trumps the specific proviso in subsection (h) would defeat what we know to be the
clear purpose of the 1974 amendment.”), implicitly indicating that the exception would not have
applied even had the agents not violated the Constitution.
As indicated in part III, infra, we conclude that the Supremacy Clause bars Denson’s
FTCA tort claims. Consequently, we need not consider whether § 2680(a) is implicated where,
as here, the government officials properly discharged their statutory and regulatory duties within
the bounds fixed by the Constitution.

33
 B.

Denson sued Inspectors Friedland and Lavenka in their individual capacities.

At trial, after Denson rested her case, the U.S. Attorney, contending that the

defendants were entitled to qualified immunity as a matter of law, moved the court

to dismiss her Bivens claims under Federal Rule of Civil Procedure 50(a).56 The

court granted the motion.57

Qualified immunity is a doctrine that generally shields “[g]overnment

officials performing discretionary functions . . . from liability for civil damages

56
The complete text of Rule 50(a) is as follows:

(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial
and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a
claim or defense that, under the controlling law, can be maintained or defeated
only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time
before the case is submitted to the jury. The motion must specify the judgment
sought and the law and facts that entitle the movant to the judgment.

57
The district court alternatively ruled that 28 U.S.C. § 2676 barred Denson’s Bivens
claims. Because, as indicated infra, we conclude that Denson failed as a matter of law to
establish that the defendants infringed her constitutional rights and that her Bivens claims should
have been dismissed under Rule 50(a) for that reason, we need not address the § 2676 issue. See
Koziara v. City of Casselberry, 392 F.3d 1302, 1306 n.2 (11th Cir. 2004) (“[W]e may affirm the
district court's judgment on any grounds supported in the record.”).
We come to the decision that Denson failed to establish her Bivens claims by “applying
the same standard as the district court.” Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1192 (11th Cir. 2004). In doing so, we view the evidence in the light most favorable to
Denson, the nonmovant. Thosteson v. United States, 331 F.3d 1294, 1298 (11th Cir. 2003).

34
insofar as their conduct does not violate clearly established rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982); see also Anderson v. Creighton,

483 U.S. 635, 638–639, 107 S. Ct. 3034, 3038–39, 97 L. Ed. 2d 523 (1987); Wood

v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003). Thus, a government official is

shielded from liability in two scenarios: (1) the claimant fails to establish that the

official violated her rights; or (2) the claimant establishes a violation of rights that

are not “clearly established.” See Pearson v. Callahan, ___ U.S. ___, 129 S. Ct.

808, 818, 172 L. Ed. 2d 565 (2009). Denson’s case fits the first scenario hand in

glove, as we explain below.

1.

The Fourth Amendment is a classic repository of constitutional rights. It

serves as a bulwark, protecting individual liberty from arbitrary invasions by state

actors. See Wolf v. People of State of Colorado, 338 U.S. 25, 27–28, 69 S. Ct.

1359, 1361, 93 L. Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio,

367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). To that end, the

proscriptions found in the Fourth Amendment impose a benchmark of

reasonableness upon the exercise of governmental discretion. Delaware v. Prouse,

440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979); Marshall v.

35
Barlow's, Inc., 436 U.S. 307, 312, 98 S. Ct. 1816, 1820, 56 L. Ed. 2d 305 (1978).

Whether a search or seizure is constitutionally reasonable is judged by “balancing

its intrusion on the individual’s Fourth Amendment interests against its promotion

of legitimate governmental interests.” United States v. Montoya de Hernández,

473 U.S. 531, 537, 105 S. Ct. 3304, 3308, 87 L. Ed. 2d 381 (1985); Brown v.

Texas, 443 U.S. 47, 50–51, 99 S. Ct. 2637, 2640, 61 L. Ed. 2d 357 (1979); Camara

v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 1734, 18 L. Ed. 2d 930

(1967).

While true that Fourth Amendment protections apply irrespective of a

person’s location, those protections do wane in some limited contexts. This is

especially true at the international border—or its functional equivalent, e.g., an

airport58 —where the government’s interest in preventing persons and effects from

entering the nation rises to its zenith. United States v. Flores-Montano, 541 U.S.

149, 152–53, 124 S. Ct. 1582, 1585, 158 L. Ed. 2d 311 (2004). In fact, the very

balance of reasonableness “is qualitatively different at the international border than

in the interior.” Montoya de Hernández, 473 U.S. at 538, 105 S. Ct. at 3309.

“[N]ot only is the expectation of privacy less at the border than in the interior, the

58
See Almeida-Sanchez v. United States, 413 U.S. 266, 272–73, 93 S. Ct. 2335, 2539, 37
L. Ed. 2d 596 (1973); United States. v. Hill, 939 F.2d 934 (11th Cir. 1991) (holding that
“[b]ecause people can enter the country at points other than along the actual border, courts look
to whether the point of entry is the functional equivalent of the border.”).

36
Fourth Amendment balance between the interests of the Government and the

privacy right of the individual is also struck much more favorably to the

Government at the border.” Id. at 539–40, 105 S. Ct. at 3309–10 (internal citations

omitted). It is beyond peradventure that searches made at the border, pursuant to

the long-standing right of the sovereign to protect its territorial integrity, renders

preliminary searches and seizures per se reasonable simply by virtue of the fact

that they occur at the border United States v. Ramsey, 431 U.S. 606, 616, 97 S. Ct.

1972, 1978, 52 L. Ed. 2d 617 (1977). Entrants, therefore, are subject to search

even in the absence of reasonable suspicion, probable cause, or warrant. Id. at 619,

97 S. Ct. at 1980; Almeida-Sanchez, 413 U.S. at 272, 93 S. Ct. at 2539, 37 L. Ed.

2d 596 (1973) (noting that the federal government may conduct “routine

inspections and searches of individuals or conveyances seeking to cross our

borders”); Carroll v. United States, 267 U.S. 132, 154, 45 S. Ct. 280, 285, 69 L.

Ed. 543 (1925) (“Travelers may be so stopped in crossing an international

boundary because of national self protection reasonably requiring one entering the

country to identify himself as entitled to come in and his belongings as effects

which may be lawfully brought in.”).

The Government’s interest in policing our borders has grown exponentially

in the present era of foreign drug trafficking. See United States v. Mendenhall,

37
446 U.S. 544, 561, 100 S. Ct. 1870, 1880, 64 L. Ed. 2d 497 (1980) (Powell, J.,

concurring) (noting that the public “has a compelling interest” to stop the flow of

illegal drugs from entering the United States). Stopping the flood of illicit drugs

pouring into the United States has become particularly difficult as drug syndicates

develop new techniques to prevent detection. One technique in the smuggler’s

repertoire, which has been utilized for more than three decades, is alimentary canal

smuggling.59 See Montoya de Hernández, 473 U.S. at 538–39, 105 S. Ct. at 3309.

This dangerous and depraved practice remains a staple method for smuggling

because it is exceedingly difficult to detect. Id.

To combat the long existing and ever present problem of contraband

smuggling, Congress expanded the Customs Office’s scope of authority by

enacting 19 U.S.C. § 1582.60 This statute provides that “all persons coming into

the United States from foreign countries shall be liable to detention and search. . .

authorized . . . [by customs regulations].” Pursuant to its Congressionally

delegated authority, U.S. Customs responded by drafting and adopting 19 C.F.R.

59
See supra note 2.
60
19 U.S.C. § 1582 provides:

The Secretary of the Treasury may prescribe regulations for the search of persons
and baggage and he is authorized to employ female inspectors for the examination
and search of persons of their own sex; and all persons coming into the United
States from foreign countries shall be liable to detention and search by authorized
officers or agents of the Government under such regulations.

38
§§ 162.6 and 162.7, which provide that “[a]ll persons, baggage, and merchandise

arriving in the . . . United States from places outside thereof are liable to

inspection” and that Customs officers “may stop, search, and examine any vehicle,

person, or beast, or search any trunk or envelope wherever found.”61

As a whole, the law provides that when Customs Officers first encounter an

individual seeking entry into the United States the officer has discretion to stop the

person and conduct a preliminary border search without fear of running afoul of

the Constitution. Ramsey, 431 U.S. at 619, 97 S. Ct. at 1980. Included within the

officer’s discretion is an entitlement to conduct routine questioning, Kaniff v.

United States, 351 F.3d 780, 784 (7th Cir. 2003), examine the entrant’s luggage,

and conduct Terry patdowns and frisks, United States v. Vega-Barvo, 729 F.2d

1341, 1345 (11th Cir. 1984); see also Bradley v. United States, 299 F.3d 197,

203–04 (3d Cir. 2002); United States v. Beras, 183 F.3d 22, 25–26 (1st Cir. 1999);

United States v. Vargas, 854 F.2d 1132, 1134 (9th Cir. 1988); United States v.

Carreon, 872 F.2d 1436, 1442 (10th Cir. 1989); United States v. Oyekan, 786 F.2d

832, 835 (8th Cir. 1986). Because an individual’s expectation of privacy is at its

lowermost at border entry points, the officer need not possess any level of

61
Courts have explicitly deemed § 1582 and its implementing regulations constitutional.
United States v. Scheer, 600 F.2d 5, 7 (3d Cir. 1979); United States v. Pringle, 576 F.2d 1114,
1117 (5th Cir. 1978); United States v. Odland, 502 F.2d 148, 151 (7th Cir.), cert. denied, 419
U.S. 1088, 95 S. Ct. 679, 42 L. Ed. 2d 680 (1974).

39
suspicion. Vega-Barvo, 729 F.2d at 1344 (“A person’s decision to cross our

national boundary is justification enough for such a search.”); United States v.

Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir. 1994) (finding that routine searches

are reasonable under the Fourth Amendment “by the single fact that the person or

item in question has entered into our country from outside.”)

2.

When Denson entered the United States, Friedland stopped her, conducted a

search of her belongings, asked her routine questions, and conducted a Terry-style

pat down. These actions fall well within the scope of routine border searches and

accordingly, do not offend the Fourth Amendment. See Brent v. Ashley, 247 F.3d

1294, 1299–1300 (11th Cir. 2001) (holding that the stop, questioning, and luggage

search of an entrant constituted a routine border search); Vega-Barvo, 729 F.2d

at1345 (“Both a luggage search and a pat-down or frisk fall within [routine border

searches] and these searches can be legitimately carried out on no more than a

generalized ‘mere suspicion’ or ‘subjective response’ of the [C]ustoms inspector.

A person’s decision to cross our national boundary is justification enough for such

a search.”). Denson’s suggestion that Friedland’s initial actions were rendered

unconstitutional because Friedland’s decision to stop and search her was racially

motivated is of no moment.

40
 If, after conducting initial questioning and a preliminary search of the

individual and the individual’s effects, the officer has reasonable suspicion that the

traveler is smuggling drugs in her alimentary canal, the Fourth Amendment permits

the Customs officer to detain the individual and conduct a more intrusive search.

Montoya de Hernández, 473 U.S. at 541–42, 105 S. Ct. at 3310–11 (allowing

detention of traveler based on reasonable suspicion of smuggling contraband in her

alimentary canal); United States v. Pino, 729 F.2d 1357, 1359 (11th Cir. 1984)

(finding use of x-ray to search traveler constitutional where reasonable suspicion

exists that person is concealing drugs internally); see United States v.

Himmelwright, 551 F.2d 991, 994 (5th Cir.) cert. denied, 434 U.S. 902, 98 S. Ct.

298, 54 L. Ed. 2d 189 (1977)62 (permitting strip search of border entrant based

upon reasonable suspicion). Similarly, once an officer gains reasonable suspicion

that a traveler is smuggling drugs in her alimentary canal, it is constitutionally

reasonable for the officer to detain the traveler for a period of time necessary to

either verify or dispel his suspicion. Montoya de Hernández, 473 U.S. at 544, 105

S. Ct. at 3312; Gonzalez-Rincon, 36 F.3d at 864.

Whether reasonable suspicion exists to justify more intrusive searches is a

62
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.

41
fact specific inquiry, requiring courts to take into account all of the facts known to

the officer at the time of the search. United States v. Arvizu, 534 U.S. 266,

273–74, 122 S. Ct. 744, 750–51, 151 L. Ed. 2d 740 (2002). Taking the totality of

the circumstances into account, “officials at the border must have a particularized

and objective basis for suspecting the particular person of alimentary canal

smuggling.” Montoya de Hernández, 473 U.S. at 541–42, 105 S. Ct. at 3311.

Reasonable suspicion requires more than mere fanciful conjecture; it must be based

upon a “particularized and objective basis for suspecting the particular person . . .

of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–18, 101 S. Ct.

690, 695, 66 L. Ed. 2d 621 (1981). Although this standard imposes limits on a

Customs official’s discretion after an individual has crossed the border, it relaxes

the normal warrant requirement of probable cause in recognition of the “many

difficulties that attend the attempt[s] to intercept contraband and to apprehend

increasingly mobile and sophisticated smugglers.” United States v. Bilir, 592 F.2d

735, 739–40 (4th Cir. 1979)

Recognizing that reasonable suspicion is a concept of a most feline

character, the Supreme Court sought to provide some instruction on applying the

concept in the border smuggling context in Montoya de Hernández. There, the

Supreme Court found that Customs inspectors had reasonable suspicion to search

42
and detain a woman traveling to the United States from Bogata, Columbia—a

“source city” for illegal drugs according to Customs officials. Montoya de

Hernández, 473 U.S. at 541, 105 S. Ct. at 3311. The woman first aroused

suspicion when a Customs inspector noticed from her passport that she had made

eight recent trips to either Miami or Los Angeles from Bogata. See id. at 533, 105

S. Ct. at 3306. After further questioning, the woman revealed that she did not

speak English and had no family or friends in the United States. Id. She further

revealed that she did not have a hotel reservation and she could not remember who

purchased her airline ticket. Id. After searching her luggage, the inspector

discovered the woman was carrying $5,000 in cash and was only carrying “cold

weather” clothes. Id. at 533–34, 105 S. Ct. at 3306. Suspecting the woman of

alimentary canal smuggling, he requested a female Customs inspector take the

woman to a private area and perform a patdown and strip search. Id. at 534, 105 S.

Ct. at 3307. Although the female inspector failed to find any contraband, she did

discover that the woman’s abdomen was firm and full and she was wearing two

pairs of elastic undergarments with a paper towel lining in the crotch area. Id.

Based on all the facts and circumstances, the inspectors detained the woman for

sixteen hours and, despite her “heroic efforts to resist the usual calls of nature,” the

inspectors discovered that the woman was carrying over eighty-eight balloons

containing a total of 528 grams of cocaine in her alimentary canal Id.

43
 Similarly, in United States v. Gonzalez-Rincon, 36 F.3d 859 (9th Cir. 1994),

cert. denied, 514 U.S. 1008, 115 S. Ct. 1323, 131 L. Ed. 2d 203 (1995), the Ninth

Circuit found that Customs inspectors had reasonable suspicion that a traveler was

an alimentary canal smuggler because she (1) was traveling from a source city

(Bogata, Columbia), (2) had paid cash for her plane ticket, (3) was carrying only

one piece of luggage, although she told the inspectors she was planning on staying

in the United States for fifteen days, (4) gave inconsistent statements regarding the

purpose of her trip, (5) her passport reflected numerous entries into the United

States, and (6) she appeared nervous and perspired heavily while being

interviewed. Id. at 863. These facts were sufficient to justify the Customs

inspectors’ decision to strip search the woman, x-ray her abdomen, and monitor her

bowel movements. Id.

In this case, when Friedland decided to accompany Denson to the restroom

and perform a search, she knew that Denson (1) had arrived from Jamaica, a

“source country,” (2) was a single traveler carrying no carry-on luggage, (3)

displayed signs of nervousness during questioning, (4) was pregnant and

accordingly, it was impossible for medical professionals to take an x-ray of her

stomach or gastrointestinal tract—making her a desirable drug “mule,” (5)

provided inconsistent statements about the purpose of her trip, (6) stated she was

married but could not provide her husband’s phone number, (7) had only stayed in

44
Jamaica for one and a half days, (8) provided a dubious story about how she

attained her plane ticket, (9) gave unverifiable employment information, and (10)

was in possession of a hand-written “cover story” written by someone else. Based

on these facts, it was eminently reasonable for Friedland, especially given her

experience and training, to suspect that Denson was concealing contraband. See

Gonzalez-Rincon, 36 F.3d at 863.

Denson argues, however, that even assuming that Friedland had reasonable

suspicion to conduct the restroom search,63 her failure to find drugs during that

search should have allayed her suspicion rather than given rise to the suspicion that

she was carrying drugs internally. She insists that Friedland’s decision (which

was affirmed by the Acting Port Director, Lavenka) to detain her and have her

taken to a hospital—so that medical professionals and Customs officers could

monitor her bowel movements—was based on nothing more than a classic drug

courier profile, insufficient to support reasonable suspicion.

If we were to accept Denson’s argument that the negative results of the

searches should have allayed all suspicion, we would turn the reasonable suspicion

standard on its head. Under Denson’s theory, whether an officer possesses

63
Because we find that the Customs inspectors had a reasonable suspicion prior to the
restroom search that Denson was an internal narcotics courier, we need not decide whether the
particular search rose to the level of a “strip search.” See Vega-Barvo, 729 F.2d at 1345
(asserting that a Customs officer must have a reasonable suspicion before conducting a strip
search).

45
reasonable suspicion is measured by the result of the search and not the facts and

circumstances that led to the officer’s decision to conduct the search. Surely,

Denson does not suggest that the absence of reasonable suspicion is

constitutionally remedied if the officer discovers contraband during the search.

Eschewing such an ex post approach, the Supreme Court has consistently

held that whether an officer has reasonable suspicion is determined by all the facts

known to the officer before and during the search. See Montoya de Hernández,

473 U.S. at 541–42, 105 S. Ct. at 3311; Arvizu, 534 U.S. at 273–74, 122 S. Ct. at

750–51. The inspector’s failure to discover drugs or other facts that would indicate

alimentary canal smuggling—such as the traveler carrying antidiarrheal

medication, see United States v. Chukwbike, 956 F.2d 209, 210 (9th Cir. 1992), or

wearing multiple pairs of undergarments lined with paper towels, see Montoya de

Hernandez, 473 U.S. at 534, 105 S. Ct. at 3307—does not necessarily diminish a

Customs inspector’s suspicions. Indeed, an absence of proof is not proof of

absence.

If, after considering all the facts and circumstances at hand, an experienced

Customs inspector reasonably suspects that an individual is a drug smuggler,

failing to find illicit drugs externally could raise a reasonable suspicion in the

inspector’s mind that the traveler is carrying drugs internally. See United States v.

Oyekan, 786 F.2d 832, 834 (8th Cir. 1986) (noting that even though strip search

46
revealed no evidence of drugs or paraphernalia associated with alimentary canal

smuggling, reasonable suspicion supported detention for x-ray and monitored

bowel movements of two women from a source country who carried small amount

of luggage, paid cash for tickets, and told implausible stories about their purpose

for traveling to the United States); Vega-Barvo, 729 F.2d at 1350 (finding that

inspectors had reasonable suspicion of internal smuggling and could proceed with

an x-ray following a negative strip search where suspect was traveling alone from a

source country, carried a single piece of luggage, and told an implausible story

regarding her employment).

Once acquiring reasonable suspicion, Friedland, with Lavenka’s approval,

could legally detain Denson for “the period of time necessary to either verify or

dispel the suspicion,” including transporting Denson to the hospital for a pelvic

exam and, if necessary, monitored bowel movements. See Montoya de Hernandez,

473 U.S. at 544, 105 S. Ct. at 3312, 87 L. Ed. 2d 381; United States v. De

Montoya, 729 F.2d 1369, 1371 (11th Cir. 1984) (permitting Customs inspectors to

detain suspect until he excreted his stomach’s contents where inspectors reasonably

suspected narcotics trafficking); United States v. Henao-Castano, 729 F.2d 1364,

1366 (11th Cir. 1984) (permitting officers to handcuff suspect to a chair because

handcuffing “was a reasonable method of preventing [suspect] from attempting to

dispose of the contents of his stomach before they could be searched.”); United

47
States v. Saldarriaga-Marin, 734 F.2d 1425, 1428 (11th Cir. 1984) (“Once the

Customs [O]fficers developed reasonable suspicion that [suspect] was an internal

carrier, they could permit nature to run its course or ask [him] to speed up the

process by taking [a] laxative”); United States v. Himmelwright, 551 F.2d 991, 995

(5th Cir. 1977) (allowing strip and body cavity searches upon reasonable suspicion

“that contraband exists in the particular place which the officials decide to

search”); Lane v. United States, 321 F.2d 573, 576 (5th Cir. 1963) (holding that

“[a]dministering emetics to cause vomiting in order to recover narcotics is not an

unreasonable search of the person.”).64

We further note that our decision today promotes sound social policy and

provides Customs inspectors a degree of flexibility and protection as they work to

secure our borders. In this case, after confronting, questioning, and searching

Denson, Friedland presented Lavenka with evidence supporting a reasonable

suspicion that Denson was concealing drugs internally. At this point, the

64
As both Friedland and Lavenka acknowledged, as a pregnant, black female traveling
alone from a brief stay in Jamaica, Denson fit a stereotypical profile. And if Friedland and
Lavenka based their decision to search and have Denson detained to monitor her bowel
movements solely on those facts, this would be a different case. See Brent v. Odesta, 247 F.3d
1294, 1302 (11th Cir. 2001) (finding officers lacked reasonable suspicion to conduct a strip
search and an x-ray examination based on the traveler having arrived from a source country and
shaking her head at inspectors who had detained another passenger); United States v.
Vega-Barvo, 729 F.2d 1341, 1349 (11th Cir. 1984) ("It is not the profile, however, but the
factors which make up the profile which are crucial to whether or not there is a reasonable
suspicion.") However, Friedland and Lavenka's decisions were based not only on a basic profile
but also on Denson's nervous behavior, the dubious nature of Denson’s answers to basic
questions, and other factors—most notably, the third-party authored cover story.

48
inspectors had a simple, but difficult, choice to make: subject the obviously

pregnant Denson to an invasive series of searches or let her go. Denson argues that

they should have opted for the latter choice irrespective of any adverse social

consequences. Yet, such a rule would force Customs inspectors to capitulate to

drug traffickers who decide to employ such depraved tactics, while simultaneously

creating an incentive for drug traffickers to continue using pregnant females to

internally smuggle drugs across our borders.65 Such collateral consequences

strongly militate against giving effect to such a theory.

In sum, based on the facts and circumstances Friedland and Lavenka

encountered, we conclude that they acted reasonably and thus, did not violate the

Fourth Amendment.66 The judgment of the district court in Denson’s Bivens case

is accordingly affirmed.

III.

65
By creating such incentives, drug traffickers will lure more pregnant women into
packing their bodies with dangerous drugs. This technique is quite dangerous because the
balloons or condoms, which are used as packages for the drugs, can burst or leak, causing
potentially fatal drug intoxication. See United States v. Ibekwe, 760 F. Supp. 1546, 1558 (M.D.
Fla. 1991); Stephen J. Traub, Body Packing—The Internal Concealment of Illicit Drugs, 349
New Eng. J. Med. 2519 (2003).
66
In granting their motion for judgment as a matter of law on the ground that they were
entitled to qualified immunity, the district court did not indicate whether Friedland and Lavenka
were entitled to qualified immunity because Denson failed to prove that their conduct violated
the Fourth Amendment or that their conduct, though challengeable, did not violate “clearly
established" Fourth Amendment "rights of which a reasonable [Customs officer] would have
known.” See Harlow v. Fitzgerald, 457 U.S. 808, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396
(1982). We conclude that they are entitled to qualified immunity because Denson failed to prove
a Fourth Amendment violation.

49
 Because Denson failed to prove a constitutional violation in her Bivens

case, the United States had at its disposal two defenses to her state tort law claims:

(1) a jurisdictional defense provided by 28 U.S.C. § 2680(a)—the discretionary

function exception; and (2) an affirmative defense under the Supremacy Clause of

the Constitution. Because we find that Denson’s state tort law claims are barred by

the Supremacy Clause, we need not consider the applicability of the discretionary

function exception and whether jurisdiction exists to entertain them.67

As we consider whether the Supremacy Clause bars Denson’s state tort law

claims, we are ever mindful that this case involves the actions of federal officers

charged with safeguarding the United States border—a locus where the federal

interest rises to its zenith—and of the extent to which those actions may be

regulated by application of state law. To be sure, the U.S. Constitution strictly

allocates the responsibility for policing international borders to the federal

government,68 and officers of the United States are solely charged with carrying

67
In her complaint in the FTCA case, Denson asserted a claim for intentional infliction of
emotional distress. We summarily dismiss this claim as it is not one of the torts enumerated
within § 2680(h). See 28 U.S.C. § 2680(h) (listing the torts of assault, battery, false
imprisonment, false arrest, abuse of process, and malicious prosecution).
68
The U.S. Constitution provides that Congress shall have the power “[t]o regulate
commerce with foreign nations, and among the several states, and with the Indian tribes.” U.S.
Const. art. I, § 8, cl. 3.

50
out that mandate.69 While the power to control who and what enters the country is

explicitly declared within the text of the Constitution itself, this power antedates

the adoption of the Constitution and “is based on [the sovereign’s] inherent

authority to protect its territorial integrity.” Torres v. Puerto Rico, 442 U.S. 465,

472–73, 99 S. Ct. 2425, 2430, 61 L. Ed. 2d (1979); see also Ramsey, 431 U.S. at

620, 97 S. Ct. at 1980. With this in mind, we must determine whether Denson can

assert her state law tort claims even though Friedland and Lavenka have otherwise

complied with federal law. A thorough examination of the Supreme Court’s

Supremacy Clause jurisprudence convinces us that the answer to this question is

no.

It is a basic tenet of “Our Federalism”70 that where federal and state law

conflict, state law must yield. This principle is captured in Article VI of the

Constitution, which reads: “This Constitution, and the Laws of the United States . .

. shall be the supreme Law of the Land . . ., any Thing in the . . . Laws of any State

to the Contrary notwithstanding.” U.S. Const. art VI, cl. 2. Soon after the creation

of our federal system, the Supreme Court explained that the Supremacy Clause was

69
See, e.g., 8 U.S.C. § 1103 (charging the Secretary of Homeland Security, the Attorney
General, and the Under Secretary of Homeland Security with certain responsibilities relating to
border security).
70
See Younger v. Harris, 401 U.S. 37, 44–45, 91 S. Ct. 746, 750–51, 27 L. Ed. 2d 669
(1971).

51
designed to ensure that states do not “retard, impede, burden, or in any manner

control” the execution of federal law. McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 436, 4 L. Ed. 579 (1819); see also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

211, 6 L. Ed. 23 (1824) (Marshall, C.J.) (“[A]cts of the State Legislatures . . . [that]

interfere with, or are contrary to the laws of Congress [are to be invalidated

because] [i]n every such case, the act of Congress . . . is supreme, and the law of

State, though enacted in the exercise of powers not controverted, must yield to

it.”).

While the Supremacy Clause allows Congress to enact legislation free of any

impediment or interference by state law, see Gade v. Nat’l Solid Waste Mgmt.

Assoc., 505 U.S. 88, 108, 112 S. Ct. 2374, 2388, 120 L. Ed. 2d 73 (1992), it jointly

serves to prevent state law or state law officials from interfering with or otherwise

impeding federal officers as they perform their lawful duties, see Tennessee v.

Davis, 100 U.S. 257, 263, 25 L. Ed. 648 (1880) (“No state government can exclude

[the federal government] from the exercise of any authority conferred upon it by

the Constitution [or] obstruct its authorized officers against its will . . . .”). The

Supreme Court further explicated this maxim in In re Neagle, 135 U.S. 1, 10 S. Ct.

658, 34 L. Ed. 55 (1890), where California sought to prosecute a United States

deputy marshal assigned to protect Justice Stephen Field during his circuit

assignment after the marshal shot and killed an angry litigant. In Neagle, the Court

52
held that the marshal was immune from state prosecution: “[I]f the prisoner is held

in the state court to answer for an act which he was authorized to do by the law of

the United States, which it was his duty to do as marshal of the United States, and

if, in doing that act, he did no more than what was necessary and proper for him to

do, he cannot be guilty of a crime under the law of the state of California.” Id. at

75, 10 S. Ct. at 672. The Court explained that under the Constitution, the United

States “may, by means of physical force, exercised through its official agents,

execute . . . the powers and functions that belong to it” free from the interference of

state law.71 Id. at 60–61, 10 S. Ct. at 667; see Davis, 100 U.S. at 262 (1879)

(noting that the government can act only through its officers and agents, who must

act within the States’ territories, and allowing state law to interfere with

71
The Supremacy Clause has also been invoked in cases where a state criminal defendant
argues that he should have been allowed to suppress evidence obtained by a federal border agent
under the applicable state constitution. For example, in State v. Coburn, 683 A.2d 1343 (Vt.
1996), a man convicted of drug possession in state court argued that his motion to suppress
evidence obtained by U.S. Customs agents should have been granted because their search and
seizure violated the Vermont Constitution. Citing the Supremacy Clause and Art I., § 8, cl 3
(regulation of commerce with foreign nations), the Vermont Supreme Court held that “the
Vermont Constitution does not apply to the conduct of federal government officials acting under
the exclusive federal authority to safeguard the borders of the United States.” Id. at 1347. In
reaching its decision, Coburn cited cases from several other states that had held similarly. See
e.g., People v. Mitchell, 79 Cal. Rptr. 764, 767 (1969) (“A border search by a United States
Customs Officer is lawful; does not depend upon probable cause; and is not governed by state
laws.”); Morales v. State, 407 So.2d 321, 329 (3d Fla DCA 1981) (holding that evidence seized
by U.S. Customs officers pursuant to reasonable border search is permissible under Florida
constitution); State v. Allard, 313 A.2d 439, 451 (Me. 1973) (finding no state constitutional
violation where U.S. Customs officer turned over evidence to state police); State v. Bradley, 719
P.2d 546, 549 (Wash. 1986) (“Neither state law nor the state constitution can control federal
officers’ conduct [during a border search].”).

53
government officers would paralyze governmental functions); Martin v. Hunter, 14

U.S. (1 Wheat. 363) 304, 363, 4 L. Ed. 97 (1816) (Johnson, J., concurring) (“[T]he

general government must cease to exist whenever it loses the power of protecting

itself in the exercise of its constitutional powers. Force, . . . , or judicial process, . .

. , are the only means to which governments can resort in the exercise of their

authority.”).

Although Neagle considered the question of whether the Supremacy Clause

would countenance a state’s criminal prosecution of a federal officer performing

his duties, its teaching has broader application. It not only spares federal officers

from trial in a potentially hostile state venue, see also Willingham v. Morgan, 395

U.S. 402, 407, 89 S. Ct. 1813, 1816, 23 L. Ed. 2d 396 (1969) (noting that “federal

officers, and indeed the Federal Government itself, require the protection of a

federal forum”), but also imparts a framework for deciding whether the Supremacy

Clause bars the application of state law to claims arising out of the conduct of

federal actors. The scheme requires that courts consider whether the officer “was

authorized to do [what he did] by the law of the United States,” whether “it was his

duty to do [it] as [an officer] of the United States,” and whether “in doing that act

he did no more than what was necessary and proper for him to do.” Neagle, 135

U.S. at 57, 10 S. Ct. at 666. If the answer to these three questions is yes,

conflicting state law is ineffectual.

54
 Although setting out three distinct questions for analysis, at bottom, Neagle

stands for the proposition that an officer of the United States cannot be held in

violation of state law while simultaneously executing his duties as prescribed by

federal law. An act cannot simultaneously be necessary to the execution of a duty

under the laws of the United States and an offense to the laws of a state. On the

contrary, the obligations imposed by federal law are supreme, and where any

supposed right or claim under state law would impede an officer from performing

his duties, it must relent. Johnson v. Maryland, 254 U.S. 51, 56–57, 41 S. Ct. 16,

65 L. Ed. 126 (1920) (Holmes, J.) (“[E]ven the most unquestionable and most

universally applicable of state laws, such as those concerning murder, will not be

allowed to control the conduct of a marshal of the United States acting under and

in pursuance of the laws of the United States.”); Ohio v. Thomas, 173 U.S. 276,

283, 19 S. Ct. 453, 455, 43 L. Ed. 699 (1899) (“When discharging [their] duties

under [F]ederal authority pursuant to and by virtue of valid Federal laws, [Federal

officers] are not subject to arrest or other liability under the laws of the State in

which their duties are performed.”).

Accordingly, for purposes of the FTCA case before us, assessing whether

the United States is amenable to liability under state law for the allegedly tortious

conduct of Friedland and Lavenka requires reference to federal law. Conflating

somewhat the elements of the Neagle test for simplicity’s sake, we look to (1)

55
whether the officers were acting “within the outer perimeter of [their] line of duty”

as defined by federal statutory and regulatory law, Barr v. Matteo, 360 U.S. 564,

575, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959) (plurality opinion), and (2) whether

“in doing [those acts, they] did no more than what was necessary and proper for

[them] to do” as demarcated by the Constitution, see Neagle, 135 U.S. at 57, 10 S.

Ct. at 666. As the Supreme Court explained, “a federal official may not with

impunity ignore the limitations which the controlling law has placed on his

powers.” Butz v. Economou, 438 U.S. 478, 489, 98 S. Ct. 2894, 2902, 57 L. Ed.

2d 895 (1978). Indeed, it is a tautology that a federal officer’s actions lie outside

the scope of his authority when the officer fails to comply with the affirmative

requirements of federal statutory or regulatory law, see id. at 489–91, 98 S. Ct. at

2902–03; Castro v. United States, 560 F.3d 381, 390–91 (5th Cir. 2009); United

States Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir.1988), and his

actions fail to qualify as “necessary and proper” if committed in violation of the

negative injunctions of the Constitution, see Butz, 438 U.S. at 489–91, 98 S. Ct. at

2902–03; Castro, 560 F.3d at 389; Medina, 259 F.3d at 225; Red Lake Band of

Chippewa Indians, 800 F.2d at 1196; see also Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682, 689–90, 69 S. Ct. 1457, 1461, 93 L. Ed. 1628

(1949); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170–71 (1803).

To be clear, this analysis examines whether the officer’s acts have some

56
nexus with furthering federal policy and can reasonably be characterized as

complying with the full range of federal law. See Johnson, 254 U.S. at 56–57, S.

Ct. at 16–17; Scherer v. Brennan, 379 F.2d 609, 611 (7th Cir. 1967) (citing Norton

v. McShane, 332 F.2d 855, 858–859 (5th Cir.), cert. denied, 380 U.S. 981, 85 S.

Ct. 1345, 14 L. Ed. 2d 274 (1964)). If the answer to these questions is yes,

application of state law, to the extent it unavoidably conflicts with federal law, has

no effect, as it would frustrate and impede the compelling federal interest of

allowing federal officers to effectively discharge their duties. See Barr, 360 U.S. at

571, 79 S. Ct. at 1339 (“[O]fficials of government should be free to exercise their

duties unembarrassed by the fear of damage suits in respect of acts done in the

course of those duties—suits which would consume time and energies which

would otherwise be devoted to governmental service and the threat of which might

appreciably inhibit the fearless, vigorous, and effective administration of policies

of government.”); Free v. Bland, 369 U.S. 663, 666, 82 S. Ct. 1089, 1092, 8 L. Ed.

2d 180 (1962) (“The relative importance to the State of its own law is not material

when there is a conflict with a valid federal law, for the Framers of our

Constitution provided that the federal law must prevail.”); see also Osborn v. Bank

of United States, 22 U.S. (Wheat. 738) 865–66, 6 L. Ed. 204 (1824).72 If the

72
In Osborn, Chief Justice Marshall explained:

An officer, for example, is ordered to arrest an individual. It is not necessary, nor

57
answer is no, state law may apply with full force, as no valid federal interest arises

in protecting the ultra vires actions of a federal officer from liability.73

In this particular case, the United States may not be held liable under state

tort law. Friedland and Lavenka’s actions bear a substantial relation to the valid

and preeminent federal interests of protecting our international borders, and, while

carrying out their lawfully defined duties, they complied with the full spectrum of

federal statutory, regulatory, and constitutional law and did no more than was

essential to carrying out their duties.

It is also of great importance to note that there exists a direct conflict

between state and federal law in this case. Initially, we note that relative to the

is it usual, to say that he shall not be punished for obeying this order. His security
is implied in the order itself. It is no unusual thing for an act of congress to
imply, without expressing, this very exemption from State control . . . . The
collectors of the revenue, the carriers of the mail, the mint establishment, and all
those institutions which are public in their nature, are examples in point. It has
never been doubted, that all who are employed in them, are protected, while in the
line of duty; and yet this protection is not expressed in any act of Congress. It is
incidental to, and is implied in, the several acts by which these institutions are
created, and is secured to the individuals employed in them by the judicial power
alone . . . ."

22 U.S. (Wheat.738) at 865–66.
73
In Mesa v. California, the Supreme Court denied removal under the federal officer
removal statute to two postal employees, 28 U. S. C. § 1442(a)(1), because they failed to
establish that they were acting within the scope of their official duties and therefore, had no
colorable federal defense to the state law charges of reckless driving and related offenses. 489
U.S. 121, 127–28, 109 S. Ct. 959, 963–64, 103 L. Ed. 2d 99 (1989). Because the federal
employees’ actions fell outside the scope of their federal duties, California’s interest in
vindicating the rights of its citizens did not frustrate any valid federal interest.

58
federal government the several states have a nominal, if not de minimis, interest in

protecting the international borders of the United States, see e.g., State v. Coburn,

683 A.2d 1343, 1347 (Vt. 1996) (implying that Vermont has little interest in

having its law apply to an illegal border search claim in light of the exclusive

federal interest in safeguarding the international border), and, moreover,

application of state tort law to the facts of this case would impede an essential

federal function by subjecting the United States to suit and possible liability even

though its officers did only what was necessary and proper, as defined by federal

law, while effectuating federal policy. Clearly, Customs officials would be

deterred from acting as is practically and unavoidably required when encountering

suspected narcotics couriers if they knew that by searching and temporarily

confining a suspected drug courier they would expose their employer (the United

States) to a tort action for assault, battery, and false imprisonment. Such a result

would have profound negative consequences, as it would frustrate the compelling

federal interests identified with effective border security by discouraging bold,

vigorous, and necessary action. See Almeida-Sanchez, 413 U.S. at 272–73, 93 S.

Ct. at 1539; Gibbons, 22 U.S. (9 Wheat.) at 211.

As Neagle and its progeny teach, state law liability simply cannot attach to

the acts taken by federal officers in the course of their duties and committed in

compliance with federal law, where such action was “no more than what was

59
necessary and proper for [the officer] to do” under the circumstances, if application

of state law would impede an essential federal function. Neagle, 135 U.S. at 57, 10

S. Ct. at 666. The Supremacy Clause will simply not countenance such a result.

See McCulloch, 17 U.S. (4 Wheat.) at 316 (explaining that state law cannot

“retard, impede, burden, or in any manner control” the necessary execution of

federal law).

In sum, since Friedland and Lavenka’s conduct comported with federal law,

Denson’s state law tort claims of assault, battery, and false imprisonment, which

are in direct conflict with the federal objectives we have identified in this FTCA

case, are barred. The judgment the district court entered in favor of the United

States is, therefore, affirmed.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

60
CARNES, Circuit Judge, concurring:

I write separately to flesh out the facts and circumstances that support this

Court’s conclusion that the customs inspectors did not violate plaintiff Janneral

Denson’s constitutional rights and also to discuss why that conclusion leads to

judgment for the United States on the FTCA claims.1

I.

Earlier this year we held in Nguyen v. United States, 556 F.3d 1244 (11th

Cir. 2009), that the United States has waived its sovereign immunity for the six tort

claims listed in the proviso to 28 U.S.C. § 2680(h), when those claims arise from

the actions of federal investigative or law enforcement officers. In that case the

three torts were false arrest, false imprisonment, and malicious prosecution. Id. at

1246. The facts, as they were presented at that stage of the proceeding, id. at 1248

n.1, were that a federal law enforcement officer had violated the Constitution by

participating in the arrest and prosecution of the plaintiff without anything

resembling probable cause, id. at 1248–49. Because the tort claims in the Nguyen

1
In regard to the FTCA claims, references to “the plaintiff” or “Denson” in this opinion
include Denson’s son, Jordan Taylor. See Maj. Op. at 13 n.23.

61
case grew out of constitutional violations, we had no occasion to decide whether

the § 2680(h) proviso has any application to tort claims that are not based on

constitutional violations. See Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203,

1207 (11th Cir. 2003) (“Whatever their opinions say, judicial decisions cannot

make law beyond the facts of the cases in which those decisions are announced.”);

United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (“The holdings of

a prior decision can reach only as far as the facts and circumstances presented to the

Court in the case which produced that decision.”) (citation omitted).

By the same token, we have no occasion in this case to decide how the FTCA

might apply if the actions of the customs inspectors toward the plaintiff had been

unreasonable or unconstitutional. Any implication in the majority opinion about

how the FTCA might apply in those different circumstances is non-binding dicta.

See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379, 114 S. Ct. 1673, 1675

(1994) (“It is to the holdings of our cases, rather than their dicta, that we must

attend. . . .”); Swann v. So. Health Partners, Inc., 388 F.3d 834, 837 (11th Cir.

2004) (“[T]he prior panel rule does not extend to dicta.”); McDonald’s Corp. v.

Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring) (“[D]icta

in our opinions is not binding on anyone for any purpose.”).

The plaintiff’s FTCA claims, which are set out in Count XI of the second

amended complaint, are based on acts of the Customs Service Director and

62
inspectors working under his supervision that the plaintiff contends violated her

rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United

States Constitution. See 2nd Amend. Complaint at ¶ 145 (“The warrantless

detention, searches, handcuffing, assault, battery, and forced medication and

improper treatment of the plaintiffs by Defendants . . . were undertaken without

legal basis and these actions were in violation of the laws of the State of Florida,

and in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments of the

United States Constitution.”). The majority concludes that the acts of the customs

inspectors were reasonable under the circumstances and therefore did not violate the

Constitution. After studying the record, I agree for reasons I will explain in Part II,

infra.

After finding that the plaintiff’s constitutional rights were not violated, the

next question is whether her FTCA claims can survive anyway. The reason that this

question arises is because the FTCA incorporates state law, specifically each state’s

elements of battery, false imprisonment, false arrest, and assault. See 28 U.S.C. §

2680(h); 28 U.S.C. § 1346(b)(1) (stating the general waiver of sovereign immunity

applies “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”); Miles

v. Naval Aviation Museum Found., Inc., 289 F.3d 715, 722 (11th Cir. 2002) (“The

FTCA creates liability for the United States only if the act at issue is a tort in the

63
state where the conduct occurred.”).

But the majority does not ask whether the plaintiff has alleged a tort other

than those based on the alleged constitutional violations. It does not ask whether

Florida law even allows a battery, false imprisonment, false arrest, or assault claim

against a law enforcement officer when there is no constitutional violation. Instead,

the majority sidesteps those questions because of its apparent belief that it does not

matter what the plaintiff pleaded or what Florida law says. According to the

majority, regardless of whether the plaintiff has pleaded any claims that do not

depend on constitutional violations, or whether Florida law would allow them if she

had, the Supremacy Clause would bar those claims anyway. Maj. Op. at 48. I do

not think that is the best approach, although I agree that the plaintiff loses for two

reasons.

First, as I read the plaintiff’s second amended complaint, the basis for her

FTCA claim is the custom inspectors’ alleged violations of her Fourth, Fifth,

Eighth, and Fourteenth Amendment rights. See 2nd Amend. Complaint at ¶ 145.

By her own description of the FTCA claim, it depends on her allegation that the

inspectors violated her constitutional rights. Because we determine that there was

no constitutional violation, the FTCA claim fails. It is that simple.

Second, even if the plaintiff had pleaded tort claims that did not rely on

constitutional violations by the federal officers, Florida law would not allow them.

64
Florida, like other states, recognizes a defense of justification which frees law

enforcement officers from liability for actions reasonably taken in pursuit of their

duty to enforce the law. See generally, e.g., City of Miami v. Sanders, 672 So. 2d

46, 47 (Fla. 3d DCA 1996) (recognizing that Florida law provides for justifiable

force by law enforcement officers, which is “a complete defense” to a battery or

excessive force claim); City of Miami v. Albro, 120 So. 2d 23, 27 (Fla. 3d DCA

1960) (“[I]n order to recover [on a false imprisonment claim] it must be shown that

the restraint was unreasonable and was not warranted by the circumstances.”); id.

(“Florida has recognized . . . that to cause a person’s imprisonment for the purpose

of vindicating public justice is not ordinarily actionable.”). Because Florida law

does not impose liability on law enforcement officers who act in a reasonable and

constitutional manner in carrying out their duties, as a matter of state law the

customs inspectors did not commit the torts that the plaintiff attempted to use as the

basis for her FTCA claim. No state torts means no FTCA claim. See 28 U.S.C. §

1346(b)(1). It is that simple.

The majority, however, assumes that Florida law would permit tort claims

against federal law enforcement officers for the lawful discharge of their duties in a

reasonable and constitutionally permissible manner. That assumption is wrong. No

one has cited, nor have I been able to find, any Florida decision that supports the

notion that the state law claims the plaintiff has asserted against the United States as

65
FTCA claims could survive a finding that the customs inspectors acted reasonably

and in a constitutional manner.

But on the basis of its incorrect assumption that Florida law would allow

such a claim, the majority believes that it has rooted out “a direct conflict between

state law and federal law.” Maj. Op. at 57. Thus, the majority turns to the

Supremacy Clause and dusts off decisions from the nineteenth century, all of which

pre-date the FTCA, to establish the unstartling proposition that state law cannot be

used to interfere with a federal officer’s proper performance of federal law duties.

See Majority Op. at Part III.B. That has been settled law for more than a hundred

years. But all it says is that the Supremacy Clause prohibits a state from imposing

liability on the United States for actions of its law enforcement officers that were

taken in full compliance with federal law, including the federal Constitution.

That is obviously true, with one important caveat. The Supremacy Clause

does not prevent federal law from permitting federal liability in these or any other

circumstances. The sovereign is sovereign over questions of sovereign immunity.

And the sovereign’s will in this area of the law has been expressed in the FTCA,

which incorporates state tort law as a matter of federal law. See 28 U.S.C. §

1346(b)(1); Miles, 289 F.3d at 722. The majority’s assertion that there is a

Supremacy Clause issue here relies on there being a “direct conflict” between state

and federal law. See Maj. Op. at 57. But under the FTCA, there can be no such

66
conflict because the sovereign has incorporated state tort law into federal law to the

extent stated in that statute. The supreme law of the land on this question is the

FTCA.

Of course, the FTCA does not necessarily allow liability whenever state tort

law freed of the United States’ sovereign immunity might impose it. Whether a

different part of the FTCA, possibly § 2680(a) (providing that sovereign immunity

is not waived for “[a]ny claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or regulation”), might

prohibit holding the United States liable for the constitutionally permissible actions

of its officers is a question for another day. It is not a question for today because, as

I have explained, Florida tort law does not impose liability in these circumstances

even if the FTCA allowed it to do so and even if the plaintiff had pleaded a claim

not dependent on a constitutional violation.

II.

I do agree with the majority that reasonable suspicion existed to justify the

custom inspectors’ actions, but I reach that conclusion for some reasons that are not

included in the majority’s discussion. I begin by summarizing the facts that

provided the customs inspectors with reasonable suspicion to believe that plaintiff

Denson was carrying drugs internally.

Denson had in her possession a highly suspicious script of what to say when

67
questioned; she was arriving from Jamaica, a source country; she was traveling with

only a carry-on bag and a purse; her trip was short (one full day and two nights);

she could not provide her husband’s address and phone number even though she

said she had been visiting him; a third party whose name she did not know bought

her ticket; the TECS system showed an alert for her (although the primary alert had

expired); she was pregnant and there is a trend of using pregnant women as internal

narcotics couriers because they cannot be x-rayed, making drugs carried in their

digestive tracts more difficult to detect. See United States v. Vega-Barvo, 729 F.2d

1341, 1350 (11th Cir. 1984) (“Since swallowers [of drugs] follow a different mode

of operation, customs agents’ suspicions will be aroused by different factors. For

example, suspicion will not focus on bulky dress . . . but on the traveler’s inability

to explain his or her trip.” (citation omitted)). Articulable facts that were

particularized to the place and person to be searched existed in this case throughout

the series of increasingly invasive searches. See id. at 1349.

Each search ruled out the presence of drugs in a particular area or cavity of

Denson’s body, but the customs inspectors’ reasonable suspicion that drugs were in

her digestive tract was not dispelled until the monitored bowel movement search

was completed. The earlier searches revealed no drugs, and each search removed

any suspicion that Denson was carrying drugs in the specific area or cavity of the

body where no drugs were found. See Brent v. Ashley, 247 F.3d 1294, 1300 (11th

68
Cir. 2001) (“[A]s a search progresses from a stop, to a pat-down search, to a strip

search, an agent must reevaluate whether reasonable suspicion to justify the next

level of intrusion exists in light of the information gained during the encounter.”).

After the initial stop (which included a pat down and luggage search), the restroom

search, the pelvic exam, and the ultrasound uncovered no drugs and revealed that

there were medical risks involved in searching further, the danger went up and

reasonable suspicion had to be reassessed. See Vega-Barvo, 729 F.2d at 1348

(stating that “as medical danger increases because of a search procedure, so must

the reasons for conducting the procedure”).

Nonetheless, the customs inspectors’ actions—all the way through the final

monitored bowel movement search in the hospital—were justified because the facts,

taken as a whole, supported their reasonable suspicion that Denson was carrying

drugs in her digestive tract, and that suspicion was not allayed until after the bowel

movement search. See United States v. Montoya de Hernandez, 473 U.S. 531,

541–42, 105 S. Ct. 3304, 3311 (1985) (holding that customs inspectors must have

“a particularized and objective basis for suspecting the particular person of

alimentary canal smuggling” (quotation marks omitted)); Vega-Barvo, 729 F.2d at

1350 (“The standard . . . must be whether under the ‘totality of the circumstances’

an experienced customs inspector would reasonably believe the traveler was

carrying contraband.”).

69
 Furthermore, the manner of the searches was reasonable. See United States

v. Pino, 729 F.2d 1357, 1359–60 (11th Cir. 1984) (“The manner of [an internal]

search is significant in determining its reasonableness”). Denson could not be x-

rayed because she was pregnant, and based on the reasonable suspicion that she was

carrying drugs in her digestive tract, it was permissible for customs inspectors to

detain her at the hospital to monitor her bowel movements. See United States v.

Mosquera-Ramirez, 729 F.2d 1352, 1357 (11th Cir. 1984) (“The detention of

persons at the border long enough to reveal by natural processes that which would

be disclosed by a more expeditious x-ray search cannot be held to be an

unreasonable seizure. Nor can the search of the results of that natural process be

held to be an unreasonable search.”); United States v. De Montoya, 729 F.2d 1369,

1371 (11th Cir. 1984) (“Once Montoya refused an x-ray, her detention until natural

bodily functions brought forth the fecal matter and stomach contents which the

officials were entitled to search did not violate the Constitution. . . .”).

Denson was at a hospital where doctors and nurses monitored her medical

condition and made professional judgment calls about her high risk pregnancy. The

pelvic exam, the ultrasound, and the bowel search were all conducted in that

hospital setting. Cf. Evans v. Stephens, 407 F.3d 1272, 1281–82 (11th Cir. 2005)

(en banc) (concluding that the constitutional violation was obvious in a non-

emergency situation where a police officer took arrestees to a broom closet or

70
supply room and conducted body cavity searches in a degrading, forceful, and

unsanitary manner). Denson was prescribed a laxative to speed up the bowel

search, a procedure we have permitted where customs inspectors reasonably suspect

that someone is carrying drugs internally. See United States v. Saldarriaga-Marin,

734 F.2d 1425, 1428 (11th Cir. 1984) (“Once the Customs officers developed

reasonable suspicion that Marin was an internal carrier, they could permit nature to

run its course or ask Marin to speed up the process by taking the laxative.”). The

use of a laxative in this case, however, is troubling because Denson’s pregnancy

was high risk. Even so, the hospital defendants were aware of that fact and they,

not the customs inspectors, made the medical decision that the use of the laxative

was appropriate.2 It was not administered in a violent or forced manner, and if

Denson ultimately had refused to take the laxative, she could have been detained at

2
Denson did present some expert testimony that the medical attention she received at
Jackson Memorial Hospital was below the professional standard of care in the community and
that it caused the premature birth of her baby. R:204:Ex. S (affidavit of Steven Pliskow, M.D.,
F.A.C.O.G.). Dr. Pliskow testified that a “breach of the standard of care significantly increased
the likelihood of a premature delivery of Janneral Denson by emergency caesarean.” Id. at 6.
Dr. Pliskow testified in his deposition that Nurse Reynauld, Nurse Thompson, and Dr. Amadio
signed an order prescribing the laxative to Denson, R:290 at 163, which “started the whole
cascade” that caused pre-term delivery of Denson’s baby. Id. at 175. In other words, Denson’s
own expert testified that the hospital defendants’ actions in prescribing the laxative—not the
actions of the customs inspectors—caused that injury.
Denson also submitted the affidavit of Susan Wheatley, R.N. R:204:Ex. T. Wheatley
testified that the nurses at Jackson Memorial “failed to advise or inform customs officers of
Janneral Denson’s medical condition with respect to initiation of the ‘protocol used for packers,’
and ‘U.S. Customs Standard of Care Form.’” Id. at 3. Thus Denson’s own expert testified that
the customs inspectors were not informed about how Denson’s medical condition would be
affected by the standard procedures used to search people suspected of being internal drug
carriers.

71
the hospital until nature took its course.3 See Pino, 729 F.2d at 1360 (“In the

absence of consent, the agents can detain you until nature reveals the truth or falsity

of their suspicions.”). The customs inspectors reasonably suspected that Denson

was carrying drugs in her digestive tract, and regarding the manner of the search

they reasonably relied on the judgment of medical professionals about its safety.

III.

I would affirm the district court’s judgment on the FTCA claim because the

customs inspectors had reasonable suspicion to conduct the searches, they acted

reasonably, and there was no constitutional violation. As a result, the state law torts

the plaintiff alleged did not occur. See Miles, 289 F.3d at 722. I would affirm the

district court’s judgment on the plaintiff’s Bivens claims because no constitutional

violation occurred. See Rodriguez v. Ritchey, 556 F.2d 1185, 1186 (5th Cir.

1977).4 I agree with the majority opinion’s resolution of the issues involving the

other claims.

3
In her initial brief Denson contended that she never consented to any examinations or
treatment and that she was “forced” to take the laxative. In her supplemental brief, however, she
stated that she “simply gave up and drank the [laxative] in order to put an end to her ordeal.”
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

72