Jose Davila v. USA

Case: 12-50044 Document: 00512196353 Page: 1 Date Filed: 04/03/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 3, 2013

No. 12-50044 Lyle W. Cayce
Clerk

JOSE DAVILA and
MARCELA C. DUARTE,

Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA, UNKNOWN
AGENTS OF UNITED STATES CUSTOMS AND
BORDER PROTECTION; IFTIKHAR KHAN;
BLAKE TRESTER; PHIL BASAK; BRIAN L. SIKES;
MARK SPIER; UNKNOWN RANGERS OF THE
UNITED STATES NATIONAL PARK SERVICE; and
UNKNOWN BREWSTER COUNTY SHERIFF
DEPUTIES,
Defendants-Appellees

Appeal from the United States District Court
for the Western District of Texas

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
DENNIS, Circuit Judge:
Plaintiffs Jose Davila (“Davila”) and Marcela Duarte (“Duarte”) appeal the
district court’s dismissal with prejudice of their claims brought under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 (“FTCA”), Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and
42 U.S.C. § 1983. The plaintiffs claim that in two incidents—arising out of a
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No. 12-50044

January 7, 2009 checkpoint search and an April 9, 2009 felony traffic stop— U.S.
Border Patrol agents, National Park Service rangers, and Brewster County
sheriff deputies violated their Fourth and Fourteenth Amendment rights against
illegal search and seizure, excessive use of force, and illegal arrest; falsely
imprisoned them; assaulted them; intentionally inflicted emotional distress on
them; and acted negligently in issuing a Be-On-The-Lookout (“BOLO”) Alert for
Davila’s vehicle. The plaintiffs sued the United States; unknown agents of U.S.
Customs and Border Protection (“Unknown CBP Agents”); Unknown Brewster
County Sheriff Deputies; and five named National Park Service (“NPS”)
Rangers, Iftikhar Khan, Blake Trester, Phil Basak, Brian Sikes, and Mark Spier
(“Named NPS Rangers”), and Unknown NPS Rangers (collectively, “NPS
Rangers”). The district court dismissed all the claims with prejudice. We
REVERSE the dismissal of Davila’s FTCA claim of false imprisonment arising
out of his arrest and detention following the search of his car at a checkpoint on
January 7, 2009, and AFFIRM the district court’s dismissal of the remaining
claims.
BACKGROUND
A.
Davila’s suit arises out of checkpoint and traffic stop incidents that
occurred in Brewster County, Texas. Duarte’s suit arises only from the latter
incident. The first incident (“the checkpoint incident”) occurred on January 7,
2009, at the U.S. Border Patrol checkpoint near Marathon, Texas. Jose Davila,
his son, Tocho Davila-Luna (“Tocho”), and Davila-Luna’s girlfriend, Yesenia
Mata (“Mata”) were traveling in a truck from Mexico into the United States.
They stopped at the checkpoint. A U.S. Customs and Border Protection (“CBP”
or “Border Patrol”) agent determined that they were all U.S. citizens, and
referred the truck for further inspection. The search revealed no contraband; the
agents found only a pair of boots, a chicken, and a cooler. The Border Patrol

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agent decided to detain them until a K-9 unit could be brought in from a
different checkpoint. Davila was told that they would have to wait twenty
minutes, but the defendants later alleged that the other checkpoint was located
fifty miles away. After two hours elapsed without the K-9 unit arriving, Tocho
became impatient and left in the vehicle. Davila and Mata remained at the
inspection site. A Brewster County sheriff deputy who was at the checkpoint
pursued Tocho in a high-speed chase and fired his gun at Tocho’s truck. Tocho
stopped the truck and was subdued and arrested. While being placed into a
holding cell at the checkpoint, Tocho kicked the door, which hit the agent’s left
hand.
While the pursuit was ongoing, Davila was detained at a cell at the
checkpoint and questioned about his son. He asserts that the Unknown CBP
Agents attempted to coerce him into making a false statement against his son.
Davila and Mata then were handcuffed and taken to a county jail in Alpine,
Texas. Davila was processed, given prison clothing, and placed in a cell. He
remained in custody until the middle of the night, when he was released without
explanation. No criminal complaint was ever filed against Davila. Tocho was
released and later charged with one count of high-speed flight and two counts of
assaulting, impeding, or resisting a federal officer. He failed to appear to answer
the charges and a warrant was issued for his arrest. As of April 4, 2009, Tocho
remained at large.
The second incident (“the Big Bend traffic stop”) occurred on April 4, 2009,
in Big Bend National Park, in Texas. Davila, accompanied by his minor
grandson and Duarte, traveled in his vehicle, a red Kia, to the park, picked up
a park pass without incident, and proceeded south through the park.
Unbeknownst to Davila, a CBP Agent had issued a BOLO for Davila’s car
because it had once been associated with Tocho. Once inside the park, the
Named NPS Rangers—Khan, Trestor, Basak, Sikes, and Spier—and the

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Unknown NPS Rangers pulled Davila over and surrounded his car with several
law enforcement vehicles.1 The Named NPS Rangers got out of their vehicles and
aimed their weapons at Davila, his grandson, and Duarte and kept their
weapons trained on them for the duration of the traffic stop. Davila, Duarte, and
Davila’s minor grandson were ordered out of the car, handcuffed, and required
to kneel on the ground. Duarte was left directly behind the exhaust pipe of a law
enforcement vehicle that remained running, and she was not allowed to move for
some period of time. While Davila, Duarte, and Davila’s grandson remained
handcuffed, the NPS Rangers searched the vehicle.
The NPS Rangers allege that they pulled Davila over in part to respond
to the BOLO that had been issued on Davila’s car. They allege that they were
worried that Tocho, a fugitive, was concealed in the car and might have
weapons. They searched the cabin of the car and forced open the trunk. They did
not find Tocho or any weapons or contraband. At some point during or after this
search, the NPS Rangers removed Davila, Duarte, and Davila’s grandson’s shoes
and placed them into separate vehicles. The NPS Rangers did not run a check
to verify their identities until thirty-eight minutes after the initial stop. The
check took six minutes. After that, Davila, Duarte, and Davila’s grandson
remained for some time in the custody of the NPS Rangers until an unknown
Border Patrol agent arrived and instructed the NPS Rangers to release them.
Before they released Davila, he was required to take a breathalyzer test three
times, which he passed. They informed Davila that his license was expired and

1
Davila alleges that he had not violated any traffic rules when he was stopped. The
Named NPS Rangers allege that when they received the BOLO, they decided that they would
pull Davila over and execute a felony stop if Davila violated any traffic rules, and that they
did, in fact, pull Davila over and searched his vehicle only after they witnessed him speeding
and weaving in his lane. For the purposes of this appeal, Davila’s allegations must be accepted
as true and viewed in the light most favorable to the plaintiffs.

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that Duarte would have to drive.2 Davila, Duarte, and Davila’s grandson were
then allowed to leave.
B.
The plaintiffs submitted separate administrative claims for relief to the
Department of Homeland Security and to the Department of the Interior for
damages arising out of the checkpoint incident and the Big Bend traffic stop.
Both claims were denied. On October 5, 2010, the plaintiffs filed their original
complaint in district court. The complaint raised ten causes of action. The first
four counts pertained to the checkpoint incident. Davila claimed that the CBP
Agents violated his Fourth Amendment right against illegal search and seizure
(Count 1), and that the government was liable under the FTCA for false
imprisonment and intentional infliction of emotional distress (Counts 2 and 3).
Davila also claimed that Unknown Brewster County Sheriff Deputies violated
his Fourth and Fourteenth Amendment rights against illegal arrest (Count 4).
The remaining six claims pertained to the Big Bend traffic stop. Davila and
Duarte brought suit against the Named NPS Rangers, Unknown Rangers, and
the Unknown CBP Agent for violating their Fourth Amendment rights against
illegal search and seizure (Count 5); and against the NPS Rangers and Unknown
Rangers for violating their Fourth Amendment rights against use of excessive
force (Count 6). The plaintiffs also brought four FTCA claims against the
government arising out of the Big Bend traffic stop: assault (Count 7);
intentional infliction of emotional distress (Count 8); false imprisonment (Count
9); and negligent breach of duty in failing to properly review relevant records
before issuing a BOLO that would subject “innocent U.S. citizens to
unreasonable search and seizure, detention, assault, and battery” (Count 10).

2
The defendants also allege that they asked Duarte to drive because Davila, though
he passed the breathalyzer test, had a small amount of alcohol in his system.

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No. 12-50044

The NPS Rangers, the defendants named in Counts 5 and 6, moved for
summary judgment on qualified immunity grounds. With regard to both the
illegal search and seizure claim and the excessive force claim, the NPS Rangers
asserted that the plaintiffs failed to show that their constitutional rights were
violated, or that such rights were clearly established at the time of the traffic
stop. The government filed a motion to dismiss counts 2, 3, and 10 for lack of
subject-matter jurisdiction. The government also filed a motion to dismiss counts
7, 8, and 9 for failure to state a claim or, alternatively, for summary judgment
on those counts. In a Memorandum Opinion and Order filed October 31, 2011,
the district court granted these motions and dismissed Counts 5 and 6 on
qualified immunity grounds; dismissed counts 2, 3, and 10 for lack of subject-
matter jurisdiction; and dismissed counts 7, 8, and 9 for failure to state a claim
upon which relief may be granted. The district court dismissed these claims with
prejudice. The Order also instructed the plaintiffs to show cause as to why the
remaining Counts 1 and 4 should not be dismissed for failure to properly serve
the defendants under Federal Rules of Civil Procedure 4(m). The plaintiffs
informed the court they would not pursue Counts 1 and 4, and on November 14,
2011, the district court dismissed Counts 1 and 4 with prejudice and dismissed
the case in its entirety. The plaintiffs now appeal.
ANALYSIS
A. Checkpoint Incident
Davila appeals the district court’s dismissal of his claim against the
government under the FTCA for false imprisonment, arising out of his
interrogation and imprisonment by Unknown Border Patrol Agents on January
7, 2009 (Count 2).3 The claim was dismissed on the grounds that the district

3
In his complaint, Davila also alleged two Fourth Amendment violation claims arising
from the same January 7, 2009 interrogation and arrest (Counts 1 and 4). He does not appeal
the dismissal of those claims. Neither does Davila appeal the dismissal of his FTCA claim for

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No. 12-50044

court lacked subject-matter jurisdiction. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v.Twombly, 550 U.S. 544, 570 (2007)). We review
the district court’s dismissal for lack of subject-matter jurisdiction over the
plaintiffs’ FTCA claim de novo. Jeanmarie v. United States, 242 F.3d 600, 602
(5th Cir. 2001). This Court “accept[s] all of the nonmovant’s well-pleaded factual
allegations as true, but [does] not rely upon conclusional allegations or legal
conclusions that are disguised as factual allegations.” Id.
The district court found that Jeanmarie, 242 F.3d 600, controls this issue
and forecloses Davila’s FTCA claim arising out of the checkpoint incident as
barred under the FTCA detention-of-goods exception. Because the interrogation
and imprisonment occurred after the detention of Davila’s vehicle had ended,
however, the detention-of-goods exception does not apply to Davila’s false
imprisonment claim, and the holding in Jeanmarie is inapplicable to the present
case.
The FTCA waives the government’s immunity from suit. The waiver is
subject to several exceptions, including the detention-of-goods exception, which
provides that the FTCA’s waiver of sovereign immunity is inapplicable to “[a]ny
claim arising in respect of . . . the detention of any goods, merchandise, or other
property by any officer of customs or excise or any other law enforcement
officer.” 28 U.S.C. § 2680(c). We interpret this subsection broadly. Capozzoli v.
Tracey, 663 F.2d 654, 658 (5th Cir. 1981). Under a separate subsection of the
FTCA, Congress has also made the waiver of immunity inapplicable to “[a]ny
claim arising out of assault, battery, false imprisonment, false arrest, malicious

intentional infliction of emotional distress (count 3). Davila abandoned his appeal of these
arguments by failing to raise them in the body of his brief. Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993).

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prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights,” but explicitly waives that immunity—thereby
providing an exception to the exception—for “any claim arising out of assault,
battery, false imprisonment, false arrest, abuse of process, or malicious
prosecution,” where such claims result from “acts or omissions of investigative
or law enforcement officers of the United States Government.” 28 U.S.C.
§ 2680(h).
Davila urges this court to reverse the district court on the basis that his
intentional tort claim of false imprisonment falls within this waiver of immunity,
even where the detention-of-goods exception might otherwise apply. In
Jeanmarie, we concluded that
notwithstanding the fact that intentional tort claims arising out of
arrests are not barred by § 2680(c), and are in fact permitted by
§ 2680(h), such claims are barred by the [detention-of-goods]
exception if the alleged torts arose from the inspection, seizure, or
detention of goods by a Customs agent because such claims involve
conduct covered by § 2680(c).
Jeanmarie, 242 F.3d at 604 (citing Gasho v. United States, 39 F.3d 1420, 1433-34
(9th Cir. 1994)). Therefore, even intentional torts committed by law enforcement
officers are exempt from FTCA suits when such torts were committed during
circumstances that would warrant a detention-of-goods exception.
Davila’s claim, however, should not have been dismissed as lacking
subject-matter jurisdiction because it did not arise from the inspection, seizure,
or detention of goods by the Border Patrol agents. In Jeanmarie, we determined
that Jeanmarie’s assault, battery, and false imprisonment occurred while his
vehicle was being searched at a checkpoint, and therefore fell within the broad
language of the exception. Id. at 605; see also Capozzoli, 663 F.2d at 658 (noting
that the language of the exception “is broad enough to encompass any activities
of an IRS agent even remotely related to his or her official duties”). Jeanmarie

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was waiting in a designated area while customs officials checked his vehicle.
When he went to search for a bathroom after being denied permission to do so,
officers caught him, shoved him against a counter, injuring his stomach, and
forcibly restrained him. We held that his claim was barred by the detention-of-
goods exception because it occurred while the search was ongoing. Jeanmarie,
242 F.3d at 604. Jeanmarie did not reach the question of whether an intentional
tort would fall under the detention-of-goods exception if it takes place after the
search is concluded, noting that “an intentional-tort claim involving the infliction
of emotional distress during an arrest following a search by a Customs agent
[may] not fall within § 2680(c) because such a tort was incident . . . to the
detention of a person after the search for and detention of goods was completed.”
Id. at 604 (citing Rivera v. United States, 907 F. Supp. 1027, 1030 (W.D. Tex.
1995)).
The intentional tort alleged by Davila occurred well after the search of his
car by Border Patrol agents. Davila waited without incident while his car was
searched at the primary inspection checkpoint and for two additional hours
while the Border Patrol agents waited for a K-9 unit to be brought in from a
different checkpoint for additional screening. He does not allege that the Border
Patrol agents committed any intentional tort during this time. After the two
hours lapsed, Tocho left in the vehicle, leaving Davila and Mata behind at the
inspection site, and was pursued and caught by Brewster County officers. The
intentional tort against Davila occurred only after Tocho had left the checkpoint
in the vehicle. The false imprisonment claim arose out of the officers’ arrest and
detention of Davila in a county jail, located away from the checkpoint. No
contraband had been found in the vehicle, the search had long since ended, and
Tocho had been caught by the time that Davila was arrested and detained.
The detention-of-goods exception covers “[a]ny claim arising in respect of
. . . the detention of any goods, merchandise, or other property by any officer of

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customs or excise or any other law enforcement officer.” 28 U.S.C. § 2680(c).
Davila does not contend that the claim arose in respect of the detention of his
vehicle, and he does not bring suit with regard to the search of his vehicle or his
treatment while at the checkpoint area. The intentional tort was allegedly
committed after Tocho left in the vehicle and were unrelated to the vehicle or the
detention thereof. For these reasons, the detention-of-goods exception does not
apply to Davila’s claim of false imprisonment as alleged in Count 2 of his
complaint.
B. Big Bend Traffic Stop
1. Fourth Amendment Violation Claims (Counts 5 and 6)
The district court granted summary judgment on the basis of qualified
immunity to the NPS Rangers who were involved in the Big Bend traffic stop,
and dismissed the plaintiffs’ Fourth Amendment claims of illegal search and
seizure (Count 5) and excessive use of force (Count 6). We review the district
court’s grant of qualified immunity de novo. Waltman v. Payne, 535 F.3d 342,
346 (5th Cir. 2008).
“Qualified immunity protects public officers from suit if their conduct does
not violate any ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Bishop v. Arcuri, 674 F.3d 456, 460 (5th
Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once the
NPS Rangers raised the qualified immunity defense, the plaintiffs bore the
burden of showing that the facts alleged demonstrated that the officer violated
a constitutional right, and that the right was clearly established at the time of
the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (holding that courts need not decide the two
prongs of Saucier in sequential order). A right is clearly established if it “would
[have been] clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at 202; see also Kovacic v. Villarreal,

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628 F.3d 209, 213 (5th Cir. 2010) (“A constitutional right is clearly established
for the purposes of section 1983 only if the law is clear enough such that ‘a
reasonable official would understand that what he is doing violates that right.’”
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))).
a. Illegal Search and Seizure Claim
The plaintiffs claim that the NPS Rangers violated their Fourth
Amendment rights against illegal searches and seizures when the NPS Rangers
pulled them over on a road in Big Bend National Park after receiving a BOLO
for Davila’s car, a red Kia. The NPS Rangers assert that the BOLO contained
the correct license plate of Davila’s car, and stated that the car was connected
with Tocho Davila-Luna, a fugitive. The government did not produce a copy of
the BOLO. Plaintiffs do not assert that the BOLO contained incorrect
information about the car or license plate, or that Tocho was no longer a fugitive
at the time of the stop. Rather, they contend that an agent issued the BOLO
without first researching whether Tocho was still associated with the car, and
assert that Tocho had not been associated with the car for several months. The
plaintiffs also allege that the NPS Rangers were unjustified in both the scope
and duration of the search of the car.
“[P]olice officers may stop and briefly detain an individual for investigative
purposes if they have reasonable suspicion that criminal activity is afoot.”
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). “Under
[Terry v. Ohio, 392 U.S. 1 (1968)], we determine the reasonableness of an
investigative stop by examining: (1) whether the officer’s action of stopping the
vehicle was justified at its inception, and (2) whether the officer’s actions were
reasonably related in scope to the circumstances that justified the stop.” United
States v. Rains, 615 F.3d 589, 594 (5th Cir. 2010) (quoting United States v.
Stevens, 487 F.3d 232, 244 (5th Cir. 2007)). The police officer must have
reasonable suspicion to justify the investigative stop, which requires “the police

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officer . . . to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.” United
States v. Rodriguez, 564 F.3d 735, 741 (5th Cir. 2009) (quoting Terry, 392 U.S.
at 21). This standard “requires more than merely an unparticularized hunch, but
considerably less than proof of wrongdoing by a preponderance of the evidence.”
Id. (quoting United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999)). We
assess the reasonableness of the stop “by conducting a fact-intensive, totality-of-
the circumstances inquiry,” id., and considering the “information available to
the officer[s] at the time of the decision to stop a person.” United States v. Silva,
957 F.2d 157, 160 (5th Cir. 1992).
“[A]n alert or BOLO report may provide the reasonable suspicion
necessary to justify an investigatory stop.” Rodriguez, 564 F.3d at 742 (alteration
in original) (quoting Gonzalez, 190 F.3d at 672). “Whether a particular . . . BOLO
report provides a sufficient basis for an investigatory stop may depend upon . .
. the specificity of the information contained in the . . . report, the extent to
which the information in the . . . report can be verified by officers in the field,
and whether the . . . report concerns active or recent activity, or has instead gone
stale.” Gonzalez, 190 F.3d at 672. During an investigatory stop, officers may
make protective sweeps of the immediate area “as a precautionary matter,” but
a search beyond that requires “articulable facts which, taken together with
rational inferences from those facts, would warrant a reasonably prudent officer
in believing that the area to be swept harbors an individual posing a danger to
those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 334 (1990). These
searches must be “aimed at protecting the arresting officers” and “last[] no
longer than is necessary to dispel the reasonable suspicion of danger and in any
event no longer than it takes to complete the arrest and depart the premises.”
Id. at 335-36. Although such sweeps generally “may extend only to a cursory
inspection of those spaces where a person may be found,” id. at 335, a protective

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sweep for weapons during a traffic stop is justified where the officers reasonably
believe that someone within police custody might gain access to weapons, either
during the traffic stop or once they are returned to their vehicles. See Michigan
v. Long, 463 U.S. 1032, 1048 (1983); United States v. Wallen, 388 F.3d 161, 166
(5th Cir. 2004).
The plaintiffs have not shown that the officers violated any clearly
established constitutional rights of the plaintiffs in conducting the search of
Davila’s vehicle. As the Supreme Court has recognized, “roadside encounters
between police and suspects are especially hazardous.” Long, 463 U.S. at 1049.
The BOLO stated that a fugitive was wanted for assaulting Border Patrol
agents. The NPS Rangers also saw that the car was not far from the national
border and heading in a southbound direction. See United States v. Rangel-
Portillo, 586 F.3d 376, 380 (5th Cir. 2009) (concluding that, while proximity to
the border does not alone constitute reasonable suspicion to stop and search a
vehicle, it “is afforded great weight in this Court’s Fourth Amendment
analysis”). In reviewing the information available to the NPS Rangers at the
time of the search, we conclude that they had reasonable suspicion that a fleeing
felon might be hidden in the vehicle or have weapons in the vehicle, and were
justified in conducting a protective sweep of the car. Therefore, they did not
violate any of the plaintiffs’ clearly established constitutional rights against
illegal search and seizure under the Fourth Amendment. Accordingly, we affirm
the district court’s grant of summary judgment in favor of the NPS Rangers on
the basis of qualified immunity for the illegal search and seizure claims arising
out of the Big Bend traffic stop.
b. Excessive Use of Force Claim
Davila and Duarte also failed to show that the NPS Rangers violated their
Fourth Amendment rights by using excessive force during the Big Bend traffic
stop. To state a Fourth Amendment excessive force claim, the plaintiffs must

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“show that [they were] seized” and “that [they] suffered (1) an injury that
(2) resulted directly and only from the use of force that was excessive to the need
and that (3) the force was objectively unreasonable.” Flores v. City of Palacios,
381 F.3d 391, 396 (5th Cir. 2004). This is a fact-specific inquiry to be made from
the perspective of an objectively reasonable officer at the scene, rather than in
hindsight. See Graham v. Connor, 490 U.S. 386, 396 (1989).
“Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Id. Officers are
“authorized to take such steps as [are] reasonably necessary to protect their
personal safety and to maintain the status quo during the course of the stop.”
United States v. Hensley, 469 U.S. 221, 235 (1985); see also United States v.
Campbell, 178 F.3d 345, 348-49 (5th Cir. 1999). This authorizes both protective
sweeps and the use of reasonable force. Law enforcement officers may also take
reasonable steps to assert command of the situation. “The risk of harm to both
the police and the occupants [of a stopped vehicle] is minimized . . . if the officers
routinely exercise unquestioned command of the situation.” Arizona v. Johnson,
555 U.S. 323, 330 (2009) (alteration in original) (citations and quotation marks
omitted).
When the traffic stop began, the NPS Rangers surrounded the Kia with
their guns drawn. They kept their guns drawn and aimed at Davila and Duarte
during the search. Davila, Duarte, and Davila’s grandson were placed in
handcuffs and required to kneel on the ground during the duration of the search,
and were then placed into separate law enforcement vehicles while the officers
checked their identity. They remained in handcuffs until another officer arrived
at the scene and ordered the rangers to release them. Duarte was forced to kneel
beside the muffler of a law enforcement vehicle that was still running during
part of the search. All three occupants complied at all times with the rangers.

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The plaintiffs pleaded that they suffered bodily injury, pain and suffering,
emotional distress, and mental anguish in the course of the seizure.
The plaintiffs adequately pleaded that they suffered injuries during the
seizure. However, the injuries did not result from force that was excessive or
objectively unreasonable because the NPS Rangers’ use of force was not
excessive in light of the totality of the circumstances at the time of the traffic
stop. Where, as in the present case, a car has been legitimately stopped by law
enforcement officers, requesting occupants to step out of the vehicle is a “de
minimis additional intrusion” that is outweighed by the government’s
“legitimate and weighty interest in officer safety.” Johnson, 555 U.S. at 331
(citations and quotation marks omitted). This is particularly true where there
are several occupants in a vehicle and the officials believe one to be dangerous.
See, e.g., United States v. Tellez, 11 F.3d 530, 533 (5th Cir. 1993). Furthermore,
the NPS Rangers were justified in drawing their weapons during the traffic stop
because they had reason to believe that an occupant of the car might be
dangerous. See United States v. Bullock, 71 F.3d 171, 179 (5th Cir. 1995). For the
same reason, they were justified in handcuffing the plaintiffs and requiring them
to kneel down. See, e.g., United States v. Sanders, 994 F.2d 200, 207-08 (5th Cir.
1993) (concluding that officers were authorized to handcuff Sanders instead of
relying solely on their aiming guns at him); see also id. at 207 (noting that “[i]f
a suspect complies with a police order to lie face down on the ground, his ability
to fight or flee is significantly reduced, thereby helping to preserve the status
quo”).
As a result of the search, the NPS Rangers were able to ascertain that
Tocho was not in the car and that the plaintiffs were not armed. However, they
did not have these facts before them when they searched the vehicle. They
approached a vehicle after receiving a BOLO that had been issued that day,
warning them that a fugitive was associated with, and might be riding in, the

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No. 12-50044

Kia. They also knew that the fugitive had previously assaulted law enforcement
officers. Given the information at their disposal, their decision to handcuff the
plaintiffs, to make them kneel outside the vehicle, and to draw their weapons on
the plaintiffs did not constitute excessive force. Therefore, we affirm the district
court’s grant of summary judgment in favor of the NPS Rangers on the basis of
qualified immunity for the excessive force claims arising out of the Big Bend
traffic stop.
2. FTCA Claims (Counts 7, 8, 9, and 10)
The plaintiffs brought four claims against the United States under the
FTCA arising out of the Big Bend traffic stop: assault (Count 7); intentional
infliction of emotional distress (Count 8); false imprisonment (Count 9); and
negligence (Count 10). The district court dismissed these claims for failure to
state a claim upon which relief may be granted. The plaintiffs abandoned their
appeal as to the district court’s dismissal of Count 8 by failing to argue it in its
brief before this Court, thereby waiving it on appeal. See Yohey, 985 F.2d at 224-
25 (“[Plaintiff] has abandoned these arguments by failing to argue them in the
body of his brief.”). They continue to appeal the dismissal of the assault, false
imprisonment, and negligence claims. We review the district court’s dismissal
of these claims de novo, “accepting all well-pleaded facts as true and viewing
those facts in the light most favorable to the plaintiff.” Brown v. Continental
Airlines, Inc., 647 F.3d 221, 225-26 (5th Cir. 2011) (citation and quotation marks
omitted).
a. Assault Claim
The United States has waived its immunity where its law enforcement
officers commit an enumerated intentional tort. 28 U.S.C. § 2680(h). “Liability
under the FTCA is determined ‘in accordance with the law of the place where the
act or omission occurred.’” Villafranca v. United States, 587 F.3d 257, 260 (5th
Cir. 2009) (quoting 28 U.S.C. § 1346(b)). In Texas, a person commits the

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intentional tort of assault—which is identical to criminal assault—if he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another . . . ;
(2) intentionally or knowingly threatens another with imminent bodily injury
. . .; or (3) intentionally or knowingly causes physical contact with another when
the person knows or should reasonably believe that the other will regard the
contact as offensive or provocative.” Tex. Penal Code Ann. § 22.01 (Vernon 2005).
Texas law also provides a “civil privilege defense.” The statute provides, in
pertinent part, that a “peace officer . . . is justified in using force against another
when and to the degree the actor reasonably believes the force is immediately
necessary to make or assist in making an arrest or search . . . if: the actor
reasonably believes the arrest or search is lawful . . . ; and before using force, the
actor . . . identifies himself as a peace officer.” Id. § 9.51(a). The Texas Penal
Code defines “peace officer” as “a person elected, employed, or appointed as a
peace officer under Article 2.12, Code of Criminal Procedure or 51.214,
Education Code, or other law.” Id. § 1.07(a)(36) (emphasis added).
Federal officers are peace officers for the purpose of the Texas criminal
assault statute and its civil privilege defense. See Villafranca, 587 F.3d at 264
(“[W]e hold that the Government can invoke [the civil privilege defense] for its
law enforcement officers as well.”). Therefore, federal law enforcement officers,
including the NPS Rangers, are protected by the Texas civil privilege defense.
See 16 U.S.C. § 1a-6(b) (providing that NPS rangers “shall maintain law and
order and protect persons and property within areas of the National Park
System,” and authorizing such rangers to carry firearms, make arrests, execute
warrants, and conduct investigations in furtherance of their duties).
For the defense to apply, the NPS Rangers must have “reasonably
believe[d] the force [was] immediately necessary to make or assist in making an
arrest or search.” Tex. Penal Code Ann. § 9.51(a). As we have already

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established, the NPS Rangers’ use of force against Davila, Duarte, and Davila’s
grandson was reasonable, given the totality of circumstances of the traffic stop.
b. False Imprisonment Claim
Neither is the government liable under the FTCA for the NPS Rangers’
actions in detaining the plaintiffs during the Big Bend traffic stop. Under Texas
law, “[t]he elements of false imprisonment are (1) willful detention, (2) without
consent, and (3) without authority of law.” Martinez v. English, 267 S.W.3d 521,
529 (Tex. App. 2008) (citing Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502,
506 (Tex. 2002)). Therefore, an officer acting with the authority of law does not
commit false imprisonment.
The district court correctly determined that the NPS Rangers acted with
authority of law. The NPS Rangers are federal agents who are authorized by the
government to:
(1) carry firearms and make arrests without warrant for any offense
against the United States committed in his presence, or for any
felony cognizable under the laws of the United States if he has
reasonable grounds to believe that the person to be arrested has
committed or is committing such felony, provided such arrests occur
within that system or the person to be arrested is fleeing therefrom
to avoid arrest;
(2) execute any warrant or other process issued by a court or officer
of competent jurisdiction for the enforcement of the provisions of
any Federal law or regulation issued pursuant to law arising out of
an offense committed in that system or, where the person subject to
the warrant or process is in that system, in connection with any
Federal offense; and
(3) conduct investigations of offenses against the United States
committed in that system in the absence of investigation thereof by
any other Federal law enforcement agency having investigative
jurisdiction over the offense committed or with the concurrence of
such other agency.
16 U.S.C. § 1a-6(b). The NPS Rangers responded reasonably after receiving a
BOLO that Davila’s vehicle was associated with and may have contained a

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No. 12-50044

fugitive who had previously assaulted border patrol agents. They did not
overstep their constitutional bounds, and were acting within the authority of law
as stipulated in § 1a-6(b). Because the plaintiffs failed to allege that the NPS
Rangers committed the intentional tort of false imprisonment, the district court
correctly dismissed this claim for failure to state a claim upon which relief may
be granted.
c. Negligence Claim
Finally, the plaintiffs appeal the district court’s dismissal of their FTCA
claim of negligence against the government. The plaintiffs claimed that
Unknown CBP Agents were negligent in issuing a BOLO on Davila’s car without
first conducting a proper review of CBP records to ascertain whether Tocho was
still associated with the car. Because the claim was dismissed for lack of subject-
matter jurisdiction, we review the district court’s dismissal de novo, “accept[ing]
all of the nonmovant’s well-pleaded factual allegations as true.” Jeanmarie, 242
F.3d at 602.
Congress has carved out several exceptions to the FTCA’s broad waiver
of immunity. One of these exceptions protects the government from suits that
are “based upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an employee
of the Government, whether or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). The discretionary-function exception “covers . . . acts that are
discretionary in nature, acts that ‘involv[e] an element of judgment or choice.’”
United States v. Gaubert, 499 U.S. 315, 322 (1991) (second alteration in original)
(quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Because there is
no element of choice “if a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow,” id. at 322 (internal
quotation marks and citations omitted), the exception “does not apply if the
challenged actions in fact violated a federal statute, regulation, or policy.” Spotts

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v. United States, 613 F.3d 559, 567 (5th Cir. 2010). To fall within the exception,
an act must satisfy a two-part test. “First . . . the challenged act must involve an
element of judgment. In other words, the Government needs to establish there
was ‘room for choice’ in making the allegedly negligent decision.” Ashford v.
United States, 511 F.3d 501, 505 (5th Cir. 2007) (quoting Gaubert, 499 U.S. at
322-23). Second, the judgment must be “of the kind that the exception was
designed to shield.” Id. Under this second prong, “the proper inquiry . . . is not
whether [the government actor] in fact engaged in a policy analysis when
reaching his decision but instead whether his decision was ‘susceptible to policy
analysis.’” Spotts, 613 F.3d at 572 (quoting Gaubert, 499 U.S. at 325). Only if
both prongs of the test are met will the discretionary-function exception apply.
Ashford, 511 F.3d at 505.
Here, the plaintiffs have not pleaded facts sufficient to demonstrate that
the discretionary-function exception is inapplicable to the issuance of the BOLO.
The plaintiffs alleged that the defendants were negligent in failing to properly
review CBP records before issuing the BOLO, because such a review would have
revealed that Tocho was no longer associated with the car, though they admit
that Tocho had used the car several months prior to the Big Bend traffic stop.
They do not point to a specific policy that governs the issuance of a BOLO or the
running of a record search prior to issuing a BOLO. The plaintiffs claim only
that there might be such a policy. However, the government asserts that no such
policy exists, and the plaintiffs have not pleaded facts or provided evidence to the
contrary. Cf. Ashford, 511 F.3d at 505 (concluding that the government failed to
satisfy step one of the discretionary-function test because two witnesses testified
that there was a policy in place that required the prison officials to take certain
actions that they did not take). Nor do the plaintiffs allege or point to evidence
that the officer lacked discretion in determining that there was sufficient

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No. 12-50044

information pertaining to Tocho’s association with the red Kia to warrant issuing
the BOLO.
The plaintiffs sought limited discovery on this issue, asserting that such
discovery would allow them to seek proof that such a policy existed. The district
court denied their request, and the plaintiffs appeal. We review for abuse of
discretion. See Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir.
2005). As the party opposing dismissal and requesting discovery, the plaintiffs
bear the burden of demonstrating the necessity of discovery. See Freeman v.
United States, 556 F.3d 326, 341-42 (5th Cir. 2009). They are “not entitled to
jurisdictional discovery if the record shows that the requested discovery is not
likely to produce the facts needed to withstand a Rule 12(b)(1) motion.” Id. at
342. Moreover, the burden is greater where, as in the present case, “the party
seeking discovery is attempting to disprove the applicability of an immunity-
derived bar to suit because immunity is intended to shield the defendant from
the burdens of defending the suit, including the burdens of discovery.” Id. The
plaintiffs have not met this burden. They alleged only that there may be a
government policy governing BOLOs, and alleged no well-pleaded facts or
evidence to refute the government’s assertion to the district court that no such
policy exists. As such, we cannot conclude that the district court abused its
discretion in denying the plaintiffs’ request.
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s dismissal of
Davila’s FTCA claim against the government arising out of his January 7, 2009
interrogation and arrest (Count 2); AFFIRM the district court’s dismissal of the
plaintiffs’ Fourth Amendment claims against the NPS Rangers arising out of the
Big Bend traffic stop (Counts 5 and 6); and AFFIRM the district court’s
dismissal of all four FTCA claims arising out of the Big Bend traffic stop (Counts
7, 9, and 10).

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