United States Court of Appeals
Fifth Circuit
In the FILED
August 4, 2006
United States Court of Appeals
for the Fifth Circuit Charles R. Fulbruge III
Clerk
_______________
m 05-50472
_______________
MARIA ANTONIETA MARTINEZ-AGUERO,
Plaintiff-Appellee,
VERSUS
HUMBERTO GONZALEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
Before SMITH, WIENER, and STEWART, for further proceedings.
Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge: On interlocutory appeal of the denial of a
summary judgment motion seeking dismissal
We must decide whether aliens stopped at for qualified immunity, we review the facts in
the border have a constitutional right to be free the light most favorable to the plaintiff. Kin-
from false imprisonment and the use of ex- ney v. Weaver, 367 F.3d 337, 348 (5th Cir.
cessive force by law enforcement personnel. 2004) (en banc) (citing Wagner v. Bay City,
Concluding that they do, we affirm the denial 227 F.3d 316, 320 (5th Cir. 2000)). Those
of Humberto Gonzalez’s motion for summary facts are as follows:
judgment that he pursued on the basis of a Plaintiff Maria Martinez-Aguero is a forty-
claim of qualified immunity, and we remand nine-year-old citizen and resident of Mexico
who visits the United States once a month to Gonzalez’s bad language, which he apparently
accompany her aunt to the El Paso Social Se- overheard. She and her aunt began walking
curity office. Though she normally enters the back in the direction of Mexico when Gon-
country using a valid border-crossing card zalez yelled, “Stop in the name of the law!”
(which is the same thing as a visitor visa), her
card had become invalid when the former Martinez-Aguero alleges in her affidavit
Immigration and Naturalization Service decid- that Gonzalez then “grabbed [her] arms, twist-
ed to issue biometric, machine-readable cards ed them behind [her] back, pushed her into a
for increased security. On July 3, 2001, Mar- concrete barrier, which hit [her] in the stomach
tinez-Aguero went with her aunt and mother . . . [and] then started kicking [her] with his
to the U.S. consular office to apply for new knees in [her] lower back.” Another agent
cards and asked how she could legally enter then took Martinez-Aguero into an office and
the United States while waiting for the cards handcuffed her to a chair. Gonzalez allegedly
to arrive in the mail. Officials told her she came in and showed her scratches on his arms
could get a stamp on her old cards that would and told her that he was going to claim that
allow her to travel in the interim. For the next she cut him with her fingernails.
three months she used the stamped card to
cross the border without incident. Shortly thereafter, Martinez-Aguero, who
is epileptic, suffered a seizure while still hand-
On October 4, Martinez-Aguero and her cuffed to the chair. She was given oxygen,
aunt made their usual bus trip to El Paso. and when she recovered she was questioned by
United States immigration officials stopped the officials before being permitted to leave. She
bus within the zone outside the port of entry suffered another seizure after arriving home
but within the territorial United States. and was taken to the hospital. She claims she
Gonzalez, an INS border patrol agent, ordered now suffers from recurrent seizures (before the
Martinez-Aguero and her aunt off the bus and beating she had not suffered a seizure for 17
requested to see their documents. He told years), memory problems, back injuries, and
Martinez-Aguero that her visa had expired, so continual pain. She alleges she cannot walk
she could not enter the country. long distances or adequately clean her house
anymore.
Martinez-Aguero asked to speak to some-
one in authority, and Gonzalez replied in Span- II.
ish, “I am in charge!” Martinez-Aguero asked Martinez-Aguero sued Gonzalez for as-
him why he would not help her, because he sault, battery, and false arrest under the Fed-
also was Mexican. This agitated Gonzalez, eral Tort Claims Act and for false arrest and
who pointed to patches on his uniform and excessive use of force under the Fourth and
shouted, “Look at me! I am not a Mexican! Fifth Amendments. Gonzalez moved for sum-
Look at my uniform!” He then yelled profani- mary judgment, asserting qualified immunity.
ties at them in Spanish and threw their visas to The district court denied the motion, and Gon-
the ground. zalez filed an interlocutory appeal.
Martinez-Aguero picked her visa up and
made a sarcastic remark to her aunt about
2
III. she alleges wrongful arrest under the Fourth
Our standard of review for interlocutory Amendment and excessive force under the
appeals differs from the usual Federal Rule of Fourth and Fifth Amendments. We must
Civil Procedure 56 standards for summary determine whether (1) Martinez-Aguero is en-
judgment. We lack jurisdiction to review the titled to the protection of these constitutional
district court’s finding that no genuine issue of guarantees, (2) the facts she alleges would suf-
material fact exists; rather, we “consider only fice to show that Gonzalez violated her rights,
whether the district court erred in assessing the and (3) the rights were clearly established at
legal significance of the conduct that the the time of the incident.
district court deemed sufficiently supported for
purposes of summary judgment.” Kinney, 367 A.
F.3d at 348. If the interlocutory appeal con- Gonzalez argues that Martinez-Aguero had
cerns summary judgment on a defense of no constitutional rights at the time of the al-
qualified immunity, we must view the facts in leged incident because she was an alien who
the light most favorable to the plaintiff. See id. attempted to enter the country illegally and
(citing Wagner v. Bay City, 227 F.3d 316, 320 was not admitted. Gonzalez relies on United
(5th Cir. 2000)). Our review of the legal States v. Verdugo-Urquidez, 494 U.S. 259,
significance of the facts is de novo. See id. at 274-75 (1990), which held that an alien who
349. has no voluntary attachment to the United
States enjoys no extraterritorial Fourth
IV. Amendment protection.2 The Court in Verdu-
We use a two-part test to determine wheth- go-Urquidez analyzed the text and history of
er an officer is entitled to qualified immunity: the phrase “the People” in the Fourth Amend-
first, do the facts alleged show that he has ment and concluded that it “refers to a class of
violated plaintiff’s constitutional rights, see persons who are part of a national community
Saucier v. Katz, 533 U.S. 194, 201 (2001); or who have otherwise developed sufficient
second, were the rights clearly established at connection with this country to be considered
the time of the alleged violation? See id. To part of that community.” Id. at 265. The
determine whether a right is clearly estab- Court acknowledged that it had held that ali-
lished, we ask “whether it would be clear to a ens enjoy certain constitutional rights, but
reasonable officer that his conduct was unlaw- those cases “establish only that aliens receive
ful in the situation he confronted.” Id. constitutional protections when they have
The only claims relevant to this appeal are
Martinez-Aguero’s Bivens actions under the (...continued)
Fourth and Fifth Amendments.1 Specifically, known Named Agents of Fed. Bur. of Narcotics,
403 U.S. 388 (1971)). Martinez-Aguero also sued
the United States under the Federal Tort Claims
Act.
1
“Under Bivens a person may sue a federal
2
agent for money damages when the federal agent Specifically, the defendant in Verdugo-Urqui-
has allegedly violated that person’s constitutional dez was detained in a correctional facility in
rights.” Brown v. NationsBank Corp., 188 F.3d California while federal agents searched his resi-
579, 590 (5th Cir. 1999) (citing Bivens v. Six Un- dence in Mexico without a warrant. See Verdugo-
(continued...) Urquidez, 494 U.S. at 262.
3
come within the territory of the United States This doctrine is called the “entry fiction,”
and developed substantial connections with the and Gonzalez urges its application to this case:
country.”3 Gonzalez also relies on Johnson v. Because Martinez-Aguero was denied entry
Eisentrager, 339 U.S. 763, 765-66 (1950), in into the United States, and because the fiction
which the Court rejected the extraterritorial requires us to treat her as if stopped at the
application of the Fifth Amendment. border (even though she was technically pres-
ent in U.S. territory), and because the Fourth
The crucial distinction is “that certain con- and Fifth Amendments have no extraterritorial
stitutional protections available to persons in- application, Gonzalez contends he should be
side the United States are unavailable to aliens entitled to qualified immunity.
outside our geographic borders.” Zadvydas v.
Davis, 533 U.S. 678, 693 (2001). The Court We disagree. This conclusion is inconsis-
in Zadvydas reasoned that a statute that autho- tent with Lynch v. Cannatella, 810 F.2d 1363
rized the indefinite detention of removable ali- (5th Cir. 1987), in which we specifically lim-
ens present in the U.S. would pose serious ited the application of the “entry fiction” to im-
constitutional problems. See id. at 682. The migration and deportation matters:
Court distinguished Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206 (1953), The “entry fiction” that excludable aliens
which held that a lawfully admitted alien who are to be treated as if detained at the border
left the country and was denied reentry for se- despite their physical presence in the United
curity reasons could be indefinitely detained at States determines the aliens’ rights with
Ellis Island. The “critical” difference for the regard to immigration and deportation pro-
Court was that the alien in Mezei never reen- ceedings. It does not limit the right of ex-
tered the United States; “[h]ence, he was treat- cludable aliens detained within United
ed, for constitutional purposes, as if stopped at States territory to humane treatment.
the border.” See Zadvydas, 533 U.S. at 693.4
Id. at 1373.
3
Id. at 271 (citing Plyler v. Doe, 457 U.S. 202, We reasoned in Lynch that the sovereign
212 (1982) (stating that provisions of the should enjoy particularly broad discretion in
Fourteenth Amendment “are universal in their ap- the immigration context, because the power to
plication, to all persons within the territorial jur- decide which, and how many, outsiders may
isdiction”); Kwong Hai Chew v. Colding, 344 U.S. join our society is critical to national self-de-
590, 596 (1953) (opining that “once an alien law- termination. See id. There are, however, no
fully enters and resides in this country he becomes identifiable national interests that justify the
invested with the rights guaranteed by the Con- wanton infliction of pain. See id. at 1373-74.
stitution to all people within our borders”).
4
In United States v. Angeles-Mascote, 206
F.3d 529, 531 (5th Cir. 2000), this court made a (...continued)
plain distinction between actual entry into the both physical presence in the country as well as
United States and attempted entry, in the context of freedom from official restraint, while ‘attempted
interpreting a grand jury indictment: “‘[A]ctual entry’ only requires that the person approach a port
entry’ has been found by most courts to require of entry and make a false claim of citizenship or
(continued...) non-resident alien status.”).
4
We concluded that “whatever due process stantive due process,’ must be the guide for
rights excludable aliens may be denied by vir- analyzing these claims.” Id.
tue of their status, they are entitled under the
due process clauses of the fifth and fourteenth Graham does not call into question the part
amendments to be free of gross physical abuse of Lynch that limits the applicability of the
at the hands of state or federal officials.” Id. “entry fiction” to the context of immigration
at 1374. and deportation proceedings. Instead, it mere-
ly locates the right to be free from excessive
Gonzalez distinguishes Lynch because the use of force in the express textual guarantees
aliens there were detained for ten days, but of the Fourth Amendment. Graham does,
Martinez-Aguero was detained for only about however, require us to analyze Martinez-
six hours. This distinction fails, however, be- Aguero’s excessive force claim, first and fore-
cause Mezei (the alien detained at Ellis Island) most, as a claim alleging an unreasonable seiz-
was held captive for twenty-one months. See ure under that amendment.5 We turn now to
Mezei, 345 U.S. at 209. The operative distinc- whether she has standing under the Fourth
tion between Lynch and Mezei is that Mezei Amendment to challenge unlawful arrest and
brought a due process challenge to his exclu- the excessive use of force.
sion proceeding, but Lynch challenged the of-
ficial use of excessive force. The “entry fic- In pre-Verdugo-Urquidez cases, the Su-
tion” applies to the former claim but not the preme Court had assumed, and we have expli-
latter. Because the “entry fiction” does not citly held, that the Fourth Amendment applies
bar Martinez-Aguero’s suit, and because she to aliens.6 Martinez-Aguero argues that the
was concededly within the territorial jurisdic-
tion of the U.S. (though outside the port of en-
try) when the alleged incident occurred, Lynch 5
Because the Fourth Amendment applies to
counsels that she should receive the Fifth Martinez-Aguero, we need not decide whether the
Amendment’s protection against the use of due process protection embodied in Lynch contin-
excessive force. ues to apply of its own force to a case where the
protection of the Fourth Amendment is unavailable.
In Graham v. Connor, 490 U.S. 386, 395 We note, however, that because Graham by its
(1989), however, the Court held that “all own terms, 490 U.S. at 395, applies only to “free
claims that law enforcement officers have used citizens,” whereas Lynch, 810 F.2d at 1373,
excessive forceSSdeadly or notSSin the course applies to all “excludable aliens detained within
of an arrest, investigatory stop, or other United States territory,” Lynch may sweep more
‘seizure’ of a free citizen should be analyzed broadly than does the Fourth Amendment
under the Fourth Amendment and its ‘reason- guarantee.
ableness’ standard, rather than under a ‘sub- 6
See, e.g., Almeida-Sanchez v. United States,
stantive due process’ approach.” The Court 413 U.S. 266 (1973) (stating that a Mexican citi-
reasoned that because “the Fourth Amendment zen was entitled to Fourth Amendment protection
provides an explicit textual source of constitu- under statute that purports to authorize warrantless
tional protection against this sort of physically searches within a reasonable distance from the U.S.
intrusive governmental conduct, that Amend- border); United States v. Cortes, 588 F.2d 106,
ment, not the more generalized notion of ‘sub- 110 (5th Cir. 1979) (“Once aliens become subject
(continued...)
5
definition of “the People” in Verdugo-Urqui- five votes for the proposition that “aliens re-
dez, seemingly limiting the class of aliens that ceive constitutional protections when they
deserve protection to those with “substantial have come within the territory of the United
connections” to the United States, is not bind- States and developed substantial connections
ing, because Justice Kennedy, though joining with the country.” Id. at 271 (emphasis add-
the majorityopinion in full, specially concurred ed).7 We need not decide whether Verdugo-
to express disagreement with the majority’s Urquidez is controlling, because even under
textual analysis. the more demanding test, Martinez-Aguero
has “developed substantial connections with
Justice Kennedy appeared to indicate that the country” and earned the protection of the
the key factor in his decision was the extrater- Fourth Amendment.
ritorial application of the Fourth Amendment:
“If the search had occurred in a residence Gonzalez contends that Martinez-Aguero
within the United States, I have little doubt lacked “substantial connections” with the Unit-
that the full protections of the Fourth Amend- ed States because, besides having an expired
ment would apply.” Verdugo, 494 U.S. at 278 visa and applying for a new one, her only
(Kennedy, J., concurring). Justice Kennedy’s connection consisted of periodic visits to assist
formulation would be favorable to Martinez- her aunt with retrieving her Social Security
Aguero, because he appears to believe that the check. Gonzalez cites Am. Immigration
Fourth Amendment’s protection is coextensive Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 60
with U.S. territorial boundaries. & n.17 (D.D.C. 1998), which held that regular
visits to family members do not qualify as
If, however, we take at face value the fact “substantial connections.” On the contrary,
that Justice Kennedy joined the opinion of the Martinez-Aguero cites language in Verdugo-
Court, see Verdugo, 494 U.S. at 275, there are Urquidez, 494 U.S. at 273, suggesting that
aliens with substantial connections are those
who are in this country “voluntarily and pre-
6
(...continued) sumably [have] accepted some societal obliga-
to liability under United States law, they also have tions.” She argues that her regular and lawful
the right to benefit from [Fourth Amendment] entry of the United States pursuant to a valid
protection.”); United States v. Cruz, 581 F.2d 535, border-crossing card8 and her acquiescence in
537 (5th Cir. 1978) (en banc), overruled on other
grounds by United States v. Causey, 834 F.2d
1179 (5th Cir. 1987) (stating that law enforcement 7
See also United States v. Emerson, 270 F.3d
“must . . . be performed with due regard to the 203, 228 (5th Cir. 2001) (citing favorably the de-
Fourth Amendment to the Constitution, which finition of the principal Verdugo opinion in the
affords citizen and alien alike protection against course of holding that the phrase “the people” as
illegal stops, searches, and arrests”); United States used in the Second Amendment confers a personal
v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978), right to bear arms).
overruled on other grounds by United States v.
8
Michelena-Orovio, 719 F.2d 738 (5th Cir. 1983) Though Martinez-Aguero arguably did not
(observing that “once we subject . . . aliens to have a valid border-crossing card the day she was
criminal prosecution, they are entitled to the equal arrested, she reasonably relied on the statements of
protection of all our laws, including the Fourth officials at the U.S. consular office that her
Amendment”). (continued...)
6
the U.S. system of immigration constitute her both[.]”
voluntary acceptance of societal obligations,
rising to the level of “substantial connec- Under the Fourth Amendment, an arrest is
tions.”9 reasonable if supported by probable cause.
See Atwater v. City of Lago Vista, 195 F.3d
Martinez-Aguero is correct. There may be 242, 244 (5th Cir. 1999) (en banc). We define
cases in which an alien’s connection with the probable cause as “reasonable ground for be-
United States is so tenuous that he cannot rea- lief . . . supported by less than prima facie
sonably expect the protection of its constitu- proof but more than mere suspicion.” United
tional guarantees; the nature and duration of States v. One 1978 Chevrolet Impala, 614
Martinez-Aguero’s contacts with the United F.2d 983, 984 (5th Cir. 1980). Taking her
States, however, are sufficient to confer version of the facts as true, we must conclude
Fourth Amendment rights. It follows that she that Martinez-Aguero did nothing to interfere
may bring a Bivens claim for unlawful arrest with Gonzalez’s official duties; rather, the ar-
and the excessive use of force under the rest was entirely without provocation. As the
Fourth Amendment. district court concluded, “[a]ny argument to
the contrary would be patently absurd.”
B.
Because Martinez-Aguero is entitled to This reasoning applies with equal force to
Fourth Amendment protection, it is obvious Martinez-Aguero’s claim of excessive force.
that she has alleged facts that, if true, would In Graham, 490 U.S. at 396, the reasonable-
establish that Gonzalez violated those rights. ness of official use of force turns on “a careful
As to false arrest, Gonzalez arrested Martinez- balancing of the nature and quality of the in-
Aguero pursuant to 18 U.S.C. § 111, which trusion on the individual’s Fourth Amendment
reads as follows: “Whoever . . . forcibly as- interests against the countervailing govern-
saults, resists, opposes, impedes, intimidates, mental interests at stake.” The relevant factors
or interferes with any person . . . while en- include “the severity of the crime at issue,
gaged in or on account of the performance of whether the suspect poses an immediate threat
official duties . . . shall . . . be fined under this to the safety of the officers or others, and
title or imprisoned not more than one year, or whether he is actively resisting arrest or at-
tempting to evade arrest by flight.” Id.
8
(...continued) Again, Martinez-Aguero plainly prevails
stamped, expired card would suffice. See Raley v. under the facts she presents. She alleges that
Ohio, 360 U.S. 423, 426 (1959) (holding that she was entirely docile and compliant (with the
“convicting a citizen for exercising a privilege exception of one stray remark not intended for
which the State had clearly told him was available Gonzalez to hear); therefore, there could be no
to him” would be “to sanction an indefensible sort
state interest in subduing her using force. In
of entrapment by the State”).
short, she has presented facts sufficient to
9
Cf. United States v. Tehrani, 826 F. Supp. survive summary judgment on both claims.
789, 793 n.1 (D. Vt. 1993) (holding that defen-
dants voluntarily gaining admission to the United C.
States for a temporary visit as tourists qualified as Finally, we must determine whether Mar-
“substantial connections”).
7
tinez-Aguero’s rights were “clearly estab- broad general proposition.” Saucier, 533 U.S.
lished” at the time of the incident. She con- at 201. If Martinez-Aguero deserves any
tends that Gonzalez has waived any right to Fourth Amendment or due process protection
make this argument. Indeed, the issue that at all, it surely must extend to the right to be
Gonzalez presents on appeal, as described and free of entirely meritless arrests and the exces-
discussed in his brief, deals exclusively with sive use of force. Lynch plainly confers on ali-
the question whether aliens enjoy Fourth or ens in disputes with border agents a right to be
Fifth Amendment protection at all. The words free from excessive force, and no reasonable
“clearly established” appear precisely once, officer would believe it proper to beat a
when Gonzalez states the test for qualified im- defenseless alien without provocation, as Mar-
munity. Because, however, one could read tinez-Aguero alleges.
Gonzalez’s argument that the relevant cases
do not support any constitutional protections The logic of Lynch applies equally to ar-
for Martinez-Aguero as implicitly containing resting an alien without cause: “Counsel has
the lesser argument that the protections are not suggested and we cannot conceive of any
not clearly established, we therefore consider national interests that would justify [the prac-
the issue on the merits. tice] simply because that person is an exclud-
able alien.” Lynch, 810 F.2d at 1374. This
Gonzalez could argue that Martinez-Ague- reasoning is particularly compelling when an
ro’s Fourth Amendment rights were not clearly alien has made a good-faith effort to comply
established because courts have split on the with federal requirements for obtaining a tem-
precedential value of Verdugo-Urquidez; be- porary visa and has made frequent use of a
cause it is uncertain how the Court intended border-crossing card to visit the country in the
the “substantial connections” test to be ap- past. On these facts, no officer would reason-
plied; and because the Court seemed explicitly ably conclude that Martinez-Aguero lacked
to reserve the question whether illegal aliens protection against suspicionless arrest.
would have Fourth Amendment rights on U.S.
soil.10 But, decisions pre-dating Verdugo- We AFFIRM the denial of summary judg-
Urquidez, including cases from this circuit, ment, and REMAND to the district court for
state unequivocally that aliens are entitled to further proceedings.
Fourth Amendment protection.11
Also, the inquiry into whether rights are
clearly established “must be undertaken in light
of the specific context of the case, not as a
10
Verdugo-Urquidez, 494 U.S. at 272 (stating
that dicta in a previous case are “not dispositive of
how the Court would rule on a Fourth Amendment
claim by illegal aliens in the United States if such
a claim were squarely before us”).
11
See supra n.6 and accompanying text.
8