     Case: 15-20212       Document: 00513562905          Page: 1     Date Filed: 06/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 15-20212                        United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
CARLOS GONZALEZ,                                                              June 23, 2016
                                                                             Lyle W. Cayce
               Plaintiff - Appellant                                              Clerk

v.

ABLE HUERTA,

               Defendant - Appellee




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




Before CLEMENT, GRAVES, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
       Carlos Gonzalez appeals the district court’s grant of summary judgment
in favor of school district police officer Abel Huerta. 1 The question presented is
whether the district court erred in granting Huerta qualified immunity.
Because we find no violation of clearly established law, we AFFIRM.




       1 The complaint lists “Able” Huerta as the defendant, but “Abel” is the correct spelling
of the defendant’s first name.
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                                 No. 15-20212
                                       I.
      On Tuesday, July 10, 2012, at approximately 4:30 pm in the afternoon,
Carlos Gonzalez drove his gold-colored sports utility vehicle (SUV) to
Bendwood Elementary School to pick up his wife, a school employee. Gonzalez
was accompanied by his thirteen-year-old daughter, who rode in the back seat.
Gonzalez backed into a parking space in the school lot and waited for his wife.
Another employee noticed his vehicle, deemed it suspicious, and contacted the
school district police, who dispatched Officer Huerta to investigate. While en
route, Huerta received additional information regarding a history of vehicle
burglaries at the same location, although no evidence connected any of these
prior incidents to a gold SUV.
      Huerta arrived at the school, matched Gonzalez’s vehicle to the
dispatcher’s description, and approached the driver’s side. Huerta then asked
Gonzalez to produce his identification. Gonzalez asked for a justification for
the request. Huerta repeated the request, and Gonzalez again asked for a
justification. Huerta stated that he would provide a justification after Gonzalez
provided his identification. Gonzalez produced a cell phone and stated that he
was calling his attorney, but he hung up without speaking to anyone. Huerta
then handcuffed Gonzalez, removed him from the vehicle, and placed him in
the back of the patrol car, holding him there for over thirty minutes. Gonzalez’s
wife eventually appeared, and once Huerta confirmed Gonzalez’s identity and
his purpose at the school, he released him.
      Gonzalez filed a § 1983 claim against Huerta alleging illegal detention,
false arrest, and excessive force in violation of the Fourth Amendment. Huerta
asserted qualified immunity and moved for summary judgment. The district
court granted the motion, finding that Huerta’s investigative detention of
Gonzalez was supported by reasonable suspicion and that Huerta was entitled
to qualified immunity.
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                                        No. 15-20212
                                               II.
      “We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th
Cir. 2013). Summary judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56. Furthermore, “we may affirm
the district court’s decision on any ground supported by the record, even if it
was not the basis for the judgment.” Terrebonne Parish Sch. Bd. v. Mobil Oil
Corp., 310 F.3d 870, 878 (5th Cir. 2002).
      “We also review a grant of qualified immunity de novo.” Bishop v. Arcuri,
674 F.3d 456, 460 (5th Cir. 2012). “A public official is entitled to qualified
immunity unless the plaintiff demonstrates that (1) the defendant violated the
plaintiff’s constitutional rights and (2) the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the violation.”
Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011).
                                              III.
      On appeal, Gonzalez argues only that Huerta lacked reasonable
suspicion to detain him, violating his constitutional right to be free from
unreasonable searches and seizures. 2 The district court determined that
Huerta’s investigative detention was supported by reasonable suspicion, “a
question of law, to which we apply de novo review.” Goodson v. City of Corpus
Christi, 202 F.3d 730, 737 (5th Cir. 2000). “Reasonable suspicion must be
supported by particular and articulable facts, which, taken together with
rational inferences from those facts, reasonably warrant an intrusion.” United



      2   Thus, we do not consider his false arrest or excessive force claims.

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                                       No. 15-20212
States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994). It “requires more than
merely an unparticularized hunch, but considerably less than proof of
wrongdoing by a preponderance of the evidence.” United States v. Gonzalez,
190 F.3d 668, 671 (5th Cir. 1999). “The application of the reasonable suspicion
standard requires the consideration of the totality of the circumstances.”
United States v. Neufeld-Neufeld, 338 F.3d 374, 378 (5th Cir. 2003).
       Viewing the evidence in the light most favorable to Gonzalez, we have
serious doubts as to whether Huerta had a reasonable basis to detain him. 3
Huerta’s first piece of information was the bare report of a “suspicious” vehicle
in the school parking lot. Huerta’s second piece of information was “a recent
history of burglaries of motor vehicles at the same location.” But Huerta did
not receive any information connecting the “suspicious” vehicle to any of the
alleged burglaries. Rather, Huerta encountered the basic scenario of a
reportedly suspicious person in an area where criminal activity had occurred
in the past—a scenario that does not support the conclusion that a particular
individual is engaged in criminal conduct. See Brown v. Texas, 443 U.S. 47, 52
(1979) (police stop of a suspect for “look[ing] suspicious” in a “neighborhood
frequented by drug users” was not justified by reasonable suspicion). Nor is
there any indication that it would be unusual for a car to be legally parked in
a school parking lot on a weekday afternoon as school employees are leaving
for the day. Compare Flores v. City of Palacios, 381 F.3d 391, 402-03 (5th Cir.
2004) (holding that car parked on the wrong side of a two-way street in
violation of Texas law supported reasonable suspicion).



       3 While an investigative detention must be based on reasonable suspicion, an arrest—
whether explicit, or de facto in the form of an excessively long Terry detention—must be based
on probable cause. See United States v. Zavala, 541 F.3d 562, 579 (5th Cir. 2008). Because
Gonzalez has not raised the issue of arrest on appeal, we only consider whether Huerta
violated Gonzalez’s rights in the initial stop and identification request.

                                              4
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                                     No. 15-20212
      Furthermore, “reasonable suspicion must be [present] . . . at the time of
the decision to stop a person.” United States v. Silva, 957 F.2d 157, 160 (5th
Cir. 1992) (emphasis added). Here, any suspicions held by Huerta should have
been alleviated before he decided to detain Gonzalez. First, Gonzalez did not
attempt to drive away or flee the scene as the officer approached. Compare
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (holding that suspect’s
unprovoked flight upon noticing police supported reasonable suspicion).
Second, Huerta saw a thirteen-year-old girl calmly sitting in the back of the
vehicle; and third, Gonzalez was doing little more than sitting in his car in a
public lot.
      Finally, Huerta points to Gonzalez’s phone call as a suspicious activity.
But Gonzalez explicitly stated that he wanted to contact his attorney, who was
apparently unavailable to receive the call. In sum, no real inference of criminal
activity can be drawn from the totality of these facts and circumstances.
      But even if we assume that Huerta violated Gonzalez’s constitutional
rights by detaining him without reasonable suspicion, we cannot say that this
detention was objectively unreasonable in light of clearly established law. 4
Gonzalez argues that the law is clearly established that a police officer’s
demand for identification constitutes a seizure under the Fourth Amendment
and must be based on reasonable suspicion. But this general claim—that a
seizure under the Fourth Amendment must be based on reasonable
suspicion—is precisely the type of “general proposition” that the Supreme
Court has rejected. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011).
Instead, the Court has repeatedly emphasized the need to look at the specific
facts of a case when determining qualified immunity. See id. (“We have


      4 We may proceed directly to the second prong of the qualified immunity analysis
without explicitly ruling on the first. See Pearson v. Callahan, 555 U.S. 223, 227 (2009).

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                                       No. 15-20212
repeatedly told courts . . . not to define clearly established law at a high level
of generality. The general proposition, for example, that an unreasonable
search or seizure violates the Fourth Amendment is of little help in
determining whether the violative nature of particular conduct is clearly
established.”) (internal citations omitted). With the more specific inquiry the
Court requires, the question becomes whether there is either “directly
controlling authority . . . establishing the illegality of such conduct” or “a
consensus of cases of persuasive authority such that a reasonable officer could
not have believed that his actions were lawful,” McClendon v. City of Columbia,
305 F.3d 314, 328–29 (5th Cir. 2002) (emphasis added) (quoting Wilson v.
Layne, 526 U.S. 603, 617 (1999)). 5
       Here, it appears that Huerta’s decision to detain Gonzalez was based, at
least in part, on his belief that Gonzalez was required to identify himself
pursuant to §37.105 of the Texas Education Code. 6 And while prior Supreme
Court cases have held that police may not detain an individual solely for
refusing to provide identification, see Brown, 443 U.S. at 52, and Hiibel v. Sixth
Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 188 (2004),
neither of those cases dealt with incidents occurring on school property. This



       5 The dissent argues that the law governing investigative detentions is “well-settled”
and thus the al-Kidd specificity concerns are not implicated. But the Ninth Circuit recently
held that qualified immunity protected an officer who had violated Terry “despite the many
cases that have given shape to the contours of the reasonable suspicion requirement
of Terry.” Thomas v. Dillard, 818 F.3d 864, 887 (2016). It recognized that the “Supreme
Court’s demanding standard” for a plaintiff to establish a violation of clearly established law
required case law establishing the unlawfulness of the stop and frisk in the particular context
of the case, which in Thomas involved reports of a domestic dispute. Id. at 887–88 (explaining
that the Supreme Court has “repeatedly told courts not to define clearly established law at a
high level of generality, since doing so avoids the crucial question whether the official acted
reasonably in the particular circumstance that he or she faced.” (quoting Plumhoff v. Rickard,
134 S. Ct. 2012, 2023 (2014))).

       6Section 37.105 of the Texas Education Code states that “[i]dentification may be
required of any person on [school] property.”
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                                         No. 15-20212
is no small distinction, as the Supreme Court has routinely reconsidered the
scope of individual constitutional rights in a school setting. See, e.g., Morse v.
Frederick, 551 U.S. 393 (2007); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646
(1995); New Jersey v. T.L.O., 469 U.S. 325 (1985). Thus, we find that Brown—
which Gonzalez relies on—and Hiibel do not meet the “sufficiently high level
of specificity” necessary “to put a reasonable official on notice” that detaining
an individual for a failure to provide identification on school property “is
definitively unlawful.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir.
2015), cert. denied, No. 15-7891, 2016 WL 361734 (2016). 7 Accordingly, we do
not find that Huerta’s actions were “objectively unreasonable in light of a
clearly established rule of law.” Id. Huerta is therefore entitled to qualified
immunity. AFFIRMED.




       7 Indeed, the officers stated to Gonzalez that “our job is a little bit different. . . . we’ve
got kids here, . . . so we have to approach a little bit different.”
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                                   No. 15-20212
GRAVES, Circuit Judge, dissenting:
      I disagree with the majority’s conclusion that there was no violation of
clearly established law.    Because I would reverse the grant of summary
judgment on the illegal detention claim and remand to the district court for
further proceedings, I respectfully dissent.
      Gonzalez argues that Huerta violated his constitutional right to be free
from unreasonable searches and seizures when he handcuffed and detained
him for failure to provide identification.
      “Temporary, warrantless detentions of individuals constitute seizures
for Fourth Amendment purposes and must be justified by reasonable suspicion
that illegal activity has or is taking place.” United States v. Rodriguez, 564
F.3d 735, 740-41 (5th Cir. 2009); See Terry v. Ohio, 392 U.S. 1, 30-31. As the
majority states, “[r]easonable suspicion must be supported by particular and
articulable facts, which, taken together with rational inferences from those
facts, reasonably warrant an intrusion.” United States v. Michelletti, 13 F.3d
838, 840 (5th Cir. 1994). It “requires more than merely an unparticularized
hunch, but considerably less than proof of wrongdoing by a preponderance of
the evidence.” United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999).
“The application of the reasonable suspicion standard requires the
consideration of the totality of the circumstances.” United States v. Neufeld-
Neufeld, 338 F.3d 374, 378 (5th Cir. 2003).
      The majority essentially acknowledges that Huerta did not have a
reasonable basis to detain Gonzalez, but then determines that the law is not
clearly established. I disagree.
      As an initial matter, I would explicitly conclude that, under the totality
of the circumstances, Huerta lacked reasonable suspicion to detain Gonzalez
and, thus, violated his constitutional rights. Huerta received only a bare report
that originated from an unknown third party of a “suspicious” vehicle in the
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                                      No. 15-20212
school parking lot and information of a recent history of automobile burglaries
at the same location. Huerta did not receive any information connecting either
Gonzalez or the “suspicious” vehicle to that information. As the majority
states, the scenario encountered by Huerta was akin to that in Brown v. Texas,
443 U.S. 47, 52 (1979), and did not justify reasonable suspicion for a stop. As
the majority further concludes, based on the totality of the facts and
circumstances in this case, any suspicions held by Huerta should have been
alleviated when he approached the vehicle.
       However, after a fairly thorough analysis outlining how Huerta violated
Gonzalez’s constitutional rights without reasonable suspicion, the majority
then determines that the very law it relies upon is not clearly established. 1 I
cannot agree. Further, I disagree with any attempt to make the qualified
immunity analysis so fact-specific that it would never be clearly established.
Thus, I would conclude that Huerta’s detention of Gonzalez was objectively
unreasonable in light of clearly established law. In so concluding, I disagree
with the majority’s characterization of Gonzalez’s claim as a “general
proposition” rejected by the Supreme Court.
       Although the law is clearly established that a seizure under the Fourth
Amendment must be based on reasonable suspicion, Gonzalez does not merely
make a general claim. Instead, he asserts that a police officer’s demand for
identification constitutes such a seizure and must be based on reasonable




       1The majority is correct that, under Pearson v. Callahan, 555 U.S. 223, 227 (2009), it
“may proceed to the second prong of the qualified immunity analysis.” However, the Pearson
holding does not include the majority’s additional language “without explicitly ruling on the
first.” Further, notwithstanding that the majority essentially ruled on the first prong,
Pearson merely said that, while deciding the two-step procedure in sequence is usually
“appropriate” and “beneficial,” it is not “inflexible” or “mandatory.” Id. at 227, 236.
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                                       No. 15-20212
suspicion based on the clearly established law of Brown. 2                   Further, even
Huerta acknowledges that the applicable law here is well-settled.
       The majority relies on a narrow proposition taken out of context from
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). The quoted material cited by the
majority actually begins with: “The Court of Appeals also found clearly
established law lurking in the broad ‘history and purposes of the Fourth
Amendment.’” Id. Here, Gonzalez does not claim that the clearly established
law stems only from the “broad history and purposes of the Fourth
Amendment.” Instead Gonzalez cites applicable case law, as does the majority.
Further, in al-Kidd, the Court clearly also said: “We do not require a case
directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. at 741.
       The issue in al-Kidd was whether “pretext could render an objectively
reasonable arrest pursuant to a material-witness warrant unconstitutional” in
the detention of terrorism suspects. The Court concluded that “[b]ecause al-
Kidd concedes that individualized suspicion supported the issuance of the
material-witness arrest warrant; and does not assert that his arrest would
have been unconstitutional absent the alleged pretextual use of the warrant;
we find no Fourth Amendment violation.” Id. at 740. With regard to whether
the law was clearly established, the Court concluded that “not a single judicial
opinion had held that pretext could render an objectively reasonable arrest
pursuant to a material witness unconstitutional” and stated that other cited




       2 Gonzalez also cites United States v. Hill, 752 F.3d 1029 (5th Cir. 2014), where this
court concluded that a motion to suppress should have been granted where a seizure of Hill,
who had been sitting in a car in an apartment complex parking lot, was unreasonable and
violated Terry. Specifically, this court said that the relevant circumstances, which included
an area known for drug activity and Hill’s girlfriend’s hasty exit from the car when the police
arrived, did not amount to articulable facts from which a reasonable officer could suspect Hill
of being engaged in criminal activity. Id. at 1031.
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                                       No. 15-20212
cases had been “rejected as irrelevant in our discussion of whether there was
any constitutional violation at all.” Id. at 741-42. Here, we are not deciding
an issue dealing with probable cause for an arrest, the applicable cases cannot
be rejected as irrelevant, and Gonzalez has made no concessions of suspicion
or reasonableness.
       The Supreme Court has definitively held that a police officer may not
detain an individual he deems suspicious solely for refusing to provide
identification, even under a state statute and in a neighborhood frequented by
drug users, without reasonable suspicion. See Brown, 443 U.S. at 51-52; Tex.
Penal Code Ann., Tit. 8, § 38.02. See also Hiibel v. Sixth Jud. Dist. Ct. of Nev.,
Humboldt Cty., 542 U.S. 177, 188 (2004); NRS 171.123(3).
       Despite the fact that the Supreme Court specifically said in al-Kidd that
“[w]e do not require a case directly on point,” the majority concludes that school
property is somehow different and there must be a case directly on point. See
al-Kidd, 563 U.S. at 741. The majority cites, as does Huerta, section 37.105 of
the Texas Education Code. Section 37.105 says:
             The board of trustees of a school district or its authorized
       representative may refuse to allow a person without legitimate
       business to enter on property under the board's control and may
       eject any undesirable person from the property on the person's
       refusal to leave peaceably on request. Identification may be
       required of any person on the property.

       Texas Educ. Code § 37.105. 3 However, section 37.105 says nothing about
any authority to detain an individual who does not immediately provide



       3 The majority cites Morse v. Frederick, 551 U.S. 393 (2007), and Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646 (1995), and New Jersey v. T.L.O., 469 U.S. 325 (1985), as authority
for the proposition that the “Supreme Court has routinely reconsidered the scope of
individual constitutional rights in a school setting.” However, those cases all deal with the
rights of students and have no application here. Additionally, the majority’s quote from
Huerta regarding “we’ve got kids” here is inapplicable. This occurred after school and there
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                                     No. 15-20212
identification upon demand, but rather says only that a person may be ejected.
Moreover, it is not clear that Huerta is either a member of the board of trustees
of the school district or an authorized representative.
      Nonetheless, assuming that section 37.105 allowed Huerta to require
that Gonzalez provide identification, it would have been unreasonable for
Huerta to believe that he could then detain Gonzalez under that same section
for failing to immediately do so. Huerta apparently agrees because he argues
that he did not detain Gonzalez solely for failing to provide identification, but
did so because he had a reasonable basis to suspect a connection between
Gonzalez and recent car burglaries under what he refers to as the “settled law”
of Terry and Michelletti.       Further, the district court decided the case on
reasonable suspicion of criminal activity.          But, as the majority’s analysis
reveals, the record does not support the existence of reasonable suspicion.
      Both Huerta and the district court attempted to distinguish Brown on
the basis that Huerta had more specific information than the officer in Brown,
not because Brown did not occur in a school parking lot. However, the record
does not establish that Huerta had more information than the officer in Brown
and the case law does not support the majority’s conclusion that the law is not
clearly established.
      For these reasons, I would reverse the grant of summary judgment on
the illegal detention claim. Accordingly, I respectfully dissent.




is no evidence that any kids were present other than Gonzalez’s daughter, who was calmly
sitting in the backseat of her father’s vehicle while waiting for her mother to exit work.
                                           12
