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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-51114                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
RICHARD RYNEARSON,                                                       February 26, 2015
                                                                           Lyle W. Cayce
                                  Plaintiff - Appellant                         Clerk

v.

UNITED STATES OF AMERICA; AGENT LANDS, Border Patrol Agent,
Individually; RAUL PEREZ, Border Patrol Agent, Individually,

                                Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:12-CV-24


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Richard Rynearson brought this Bivens action against two border patrol
agents in their individual capacities. He alleged they violated his Fourth
Amendment rights by unlawfully detaining him. The district court granted
summary judgment for the agents after concluding that they were entitled to
qualified immunity. We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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              FACTUAL AND PROCEDURAL BACKGROUND
      Rynearson, a major in the United States Air Force, was stopped at a fixed
interior immigration checkpoint in Uvalde County, Texas approximately 67
miles from the United States-Mexico border in March 2010. He alleges that he
has had several unpleasant experiences in prior stops at the checkpoint.
Consequently, he was prepared with numerous cameras in his vehicle to record
this stop. The following facts come from the pleadings and a video Rynearson
recorded during the stop and posted on at least two websites. The defendants
included the video as an exhibit in their Motion to Dismiss.
      When Rynearson entered the checkpoint he was asked if he owned his
vehicle. Upon saying he did, he was asked to move to the secondary inspection
area. He was not asked about his citizenship at any point during the initial
stop. Rynearson kept his window almost completely closed throughout all
communications with the officers despite being repeatedly asked to open it
further or step out of the vehicle. Rynearson was held in his vehicle in the
secondary inspection area for a little over a minute before he was asked to
display his identification. Inside the car, he stuck his driver’s license and
military identification between the window glass and the door’s weather
stripping, where they could be read from the outside of the vehicle.
      Upon seeing Rynearson’s military identification, Agent Lands asked him
where he was stationed. The agent then asked him to step out of the car.
Rynearson refused and demanded to be told why he was being detained. Agent
Lands explained that he needed to determine Rynearson’s citizenship and that
he would be free to go afterwards, but Rynearson still refused to step out of the
car or roll down his window. Rynearson insisted that he would not get out
unless Lands explained his reasonable suspicions for detaining him. This
discussion continued for about eight minutes before Agent Lands said he was
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                                 No. 13-51114


going to find a supervisor. Rynearson then added his passports to the display
of documents on his window.
      After Rynearson had waited 18 minutes at the checkpoint, Supervisory
Border Patrol Agent Perez arrived. Rynearson explained to Agent Perez that
the agents had not allowed him to leave despite the fact that he had offered his
identification and told them that he was a citizen. Rynearson still refused to
roll down his window or exit the vehicle. Agent Perez asked for Rynearson’s
passports and for the name of Rynearson’s commanding officer. Rynearson
refused to give the name and complained that Agent Perez was trying to
interfere with his employment. Agent Perez then took Rynearson’s passports
into the checkpoint station and returned 13 minutes later to inform Rynearson
that he was free to go.     He explained that if Rynearson would be more
cooperative in the future by rolling down his window to help agents hear over
the traffic and by physically producing immigration documents for validation,
the checkpoint procedure would be quicker. Rynearson’s total time at the
checkpoint was approximately 34 minutes.
      Rynearson submitted an administrative claim to United States Customs
and Border Protection pursuant to the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2671 et seq., seeking $500,000 in damages as a result of the stop. His
claim was denied. He then filed this suit in the United States District Court
for the Western District of Texas. His FTCA claims were based on negligence,
false arrest and imprisonment, intentional infliction of emotional distress, and
violation of rights under the Fourth, Fifth, Sixth, and Fourteenth
Amendments.     His complaint also included Bivens claims against Agents
Lands and Perez for violation of his Fourth Amendment rights. See Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).


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Only the Bivens Fourth Amendment claims are before this court. All others
were dismissed and no appeal was taken.
      The district court concluded that Agents Lands and Perez were entitled
to qualified immunity because Rynearson failed to demonstrate a violation of
his Fourth Amendment rights in either the manner of conduct at the stop or
the duration of the stop. The court also found that the agents had reasonable
suspicion to detain Rynearson. Finally, the district court denied Rynearson’s
motion to stay summary judgment pending discovery.
                                 DISCUSSION
      We review de novo a district court’s grant of summary judgment on the
basis of qualified immunity. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
2007). “The doctrine of qualified immunity protects governmental officials
‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The plaintiff has the burden
of refuting a properly raised qualified immunity defense “by establishing that
the official’s allegedly wrongful conduct violated clearly established law.”
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (quotations and citation
omitted). “Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments and protects all but the plainly
incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 S.
Ct. 3, 5 (2013) (quotations and citations omitted).
      We conduct a two-step analysis to determine whether an agent is entitled
to qualified immunity. See Saucier v. Katz, 533 U.S. 194 (2001). The usual
approach is to determine, first, “whether, viewing the summary judgment
evidence in the light most favorable to the plaintiff, the defendant violated the
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plaintiff's constitutional rights.” Freeman, 438 F.3d at 410. If such a violation
occurred, we then “consider whether the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Id. at 411. For a right to be clearly established, “existing precedent
must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). Although the existence of the
right is often considered first, it is permissible to begin with the determination
of whether the claimed right was clearly established: “the judges of the district
courts and the courts of appeals are in the best position to determine the order
of decisionmaking that will best facilitate the fair and efficient disposition of
each case.” Pearson, 555 U.S. at 242.
      A routine interior immigration checkpoint stop conducted without
reasonable suspicion does not violate the Fourth Amendment. United States
v. Martinez-Fuerte, 428 U.S. 543, 561-62 (1976).       Border patrol agents at
interior checkpoints may stop a vehicle, refer it to a secondary inspection area,
request production of documents from the vehicle’s occupants, and question the
occupants about their citizenship. Id. at 562-63. The purpose of the stop is
limited to ascertaining the occupants’ citizenship status. United States v.
Machuca-Barrera, 261 F.3d 425, 433 (5th Cir. 2001).            “The permissible
duration of an immigrant checkpoint stop is therefore the time reasonably
necessary to determine the citizenship status of the persons stopped.” Id.
“Conversely, when officers detain travelers after the legitimate justification for
a stop has ended, the continued detention is unreasonable.” United States v.
Portillo-Aguirre, 311 F.3d 647, 654 (5th Cir. 2002).
      Rynearson argues the agents violated his Fourth Amendment rights by
being “intentionally dilatory” in waiting too long to ask about his citizenship,
intentionally extending the duration of his detainment, and calling his military
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base to inquire into his military status. He argues that he had a right to refuse
to cooperate because the Fourth Amendment “does not impose obligations on
the citizen” to cooperate. See Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S.
177, 187 (2004).
      Rynearson relies on precedent discussing the Supreme Court’s analysis
in Terry v. Ohio, 392 U.S. 1 (1968). Terry allows a law enforcement officer to
detain a person for a brief investigation if the officer can identify specific and
articulable facts leading to a reasonable suspicion that the person is
committing or about to commit a crime. United States v. Hill, 752 F.3d 1029,
1033 (5th Cir. 2014). In contrast, the Supreme Court has granted agents at
immigration checkpoints the right to stop and question a vehicle’s occupants
regarding their citizenship without reasonable suspicion of any wrongdoing.
Machuca-Barrera, 261 F.3d at 433.           That grant of authority is readily
distinguishable from the authority granted by Terry.
      There is no dispute that the initial stop was constitutional. Neither
Rynearson nor his car was searched. Because the Supreme Court has granted
agents the authority to stop, question, and inspect documents at interior
checkpoints, the government argues there must also be a requirement that the
individual cooperate with the agents. The Supreme Court has concluded that
“all that is required of the vehicle’s occupants is a response to a brief question
or two and possibly the production of a document evidencing a right to be in
the United States.” United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975)
(quotations and citation omitted).
      The facts indicate that Rynearson generally asserted his right against
unlawful searches and seizures while the agents had difficulty determining
how to respond to his unorthodox tactics. We have not discovered nor been
shown any authority supporting Rynearson’s claim that the constitutional
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rights he chose to stand on were clearly established. Accordingly, we conclude
that these governmental officials, at worst, made reasonable but mistaken
judgments when presented with an unusually uncooperative person, unusual
at least in the facts described in any of the caselaw.
      Because we hold that no constitutional right of which all reasonable
officers would have known was violated, we need not consider whether
Rynearson actually had some limited Fourth Amendment right to refuse to
cooperate. See Pearson, 555 U.S. at 242.
      We close by examining Rynearson’s argument that the district court
erred by denying his motion to stay summary judgment pending limited
discovery. “We review a decision to stay discovery pending resolution of a
dispositive motion for an abuse of discretion.” Brazos Valley Coal. for Life, Inc.
v. City of Bryan, Tex., 421 F.3d 314, 327 (5th Cir. 2005). We find no basis to
disturb the district court’s exercise of discretion.     Qualified immunity “is
intended to give government officials a right not merely to avoid standing trial,
but also to avoid the burdens of such pretrial matters as discovery . . . .”
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (citation and
internal quotations omitted). To stay summary judgment in order to allow
discovery, the court must determine “that the plaintiff’s pleadings assert facts
which, if true, would overcome the defense of qualified immunity.” Wicks v.
Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995). Then, if the court
remains “unable to rule on the immunity defense without further clarification
of the facts,” it may issue a discovery order “narrowly tailored to uncover only
those facts needed to rule on the immunity claim . . . .” Lion Boulos v. Wilson,
834 F.2d 504, 507-08 (5th Cir. 1987). We have already discussed why the




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officers were entitled to qualified immunity in the absence of any clearly
established constitutional right. Discovery was unnecessary.
     AFFIRMED.




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                                      No. 13-51114
JENNIFER WALKER ELROD, Circuit Judge, dissenting:
       At a fixed interior immigration checkpoint approximately sixty-seven
miles from the United States–Mexico border, United States Air Force officer
Richard Rynearson presented four forms of government-issued identification—
including official and personal U.S. passports—to show that he is a United
States citizen. Yet Agent Lands refused to examine the passports and Agent
Perez, rather than simply scrutinizing the passports, asked Rynearson to
identify his commanding officer and then made Rynearson wait while he placed
phone calls to Rynearson’s employer. Because the law is clearly established
that immigration officials violate the Fourth Amendment when they continue
to detain a traveler beyond the time reasonably necessary to investigate his
citizenship status, I respectfully dissent.
                                                 I.
       The majority opinion accurately recites many of the facts that gave rise
to this controversy, but I write to emphasize a couple of points. First, for the
duration of the stop, Rynearson asserted his rights while also providing the
documentation needed to prove his citizenship status. The majority opinion
labels these actions “tactics” and calls them “unorthodox” and “unusually
uncooperative.” However, as the majority opinion recognizes—and a review of
the record and the video confirms 1—Rynearson began cooperating as early as




       1 As the majority opinion observes, Rynearson posted a video of the incident on the
internet, and the defendants attached it as an exhibit to their motion to dismiss. The video,
which is divided into four parts and entitled “Full Video – Border Patrol Incident,” appears
at the following links:

       Part One: https://www.youtube.com/watch?v=4BId1f8WG2s
       Part Two: https://www.youtube.com/watch?v=NqU9M9RyeZA
       Part Three: https://www.youtube.com/watch?v=o8GDNFleCI8
       Part Four: https://www.youtube.com/watch?v=mZbCCBH7YM4

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two minutes into the stop by producing identification documents. 2 Moreover,
while he provided the information needed to prove his citizenship, Rynearson
explained several times that he would not indulge the officers’ commands when
he thought that they exceeded the limited scope of the immigration checkpoint
inquiry. Standing on one’s rights is not an “unorthodox tactic[].” It is a
venerable American tradition.
       Second, the record also shows that Agents Lands and Perez did not
expeditiously investigate Rynearson’s citizenship status. Approximately two
minutes into the stop, Rynearson displayed his military identification and
driver’s license for Agent Lands, but Agent Lands waited until approximately
eleven minutes into the detention to inform Rynearson that those
identification cards “don’t mean anything.”                    At that point, Rynearson
immediately offered to show Agent Lands his official and personal U.S.
passports. Agent Lands ignored the offer and, for the first time, finally asked
Rynearson whether he was a United States citizen. Rynearson responded
affirmatively, but he was not then permitted to leave, and Agent Lands never
asked to see Rynearson’s passports.
       Almost eighteen minutes into the detention, Agent Perez arrived and
asked for Rynearson’s passports.               Rynearson instantly surrendered them.
Rather than simply examine the passports, however, Agent Perez asked
Rynearson to identify his commanding officer and attempted to call the Provost
Marshal 3 and CID. 4 Agent Perez spent ten to fifteen minutes on these phone
calls, and Agent Lands did not inform Rynearson that he was free to leave until



       2  Because the parties agree that Rynearson’s video is accurate, we must “view[] the
facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380–81 (2007).

       3   The Provost Marshal is the officer in charge of the military police.

       4   “CID” refers to the U.S. Army Criminal Investigation Command.
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more than fifteen minutes after Agent Perez took his passports. 5 In total,
approximately twenty-three minutes transpired between the time that
Rynearson offered his passports to Agent Lands and the time that the
detention ended, for a total detention time of approximately thirty-four
minutes. Although Agent Perez did scrutinize Rynearson’s passports at some
point during the final portion of the detention, Agent Lands stated in a
declaration that such records checks generally take a “couple of minutes.”
                                                II.
       Agents Lands and Perez argue that, on summary judgment, they can
invoke qualified immunity to defeat Rynearson’s Bivens action against them.
The test for qualified immunity is a familiar one. “First, a court must decide
whether the facts . . . alleged . . . make out a violation of a constitutional right.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). “Second, if the plaintiff has
satisfied this first step, the court must decide whether the right at issue was
‘clearly established’ at the time of [the] alleged misconduct.” Id. This second
prong of the qualified immunity analysis asks whether “[t]he contours of the
right [are] sufficiently clear that a reasonable official would understand that
what he is doing violates [the] right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). Stated another way, “in the light of pre-existing law the unlawfulness
must be apparent.” Id. Qualified immunity applies unless both prongs are
satisfied. Pearson, 555 U.S. at 232.




       5 The majority opinion incorrectly asserts that Agent Perez was the one who returned
the passports to Rynearson and informed him that he was free to leave. In fact, Agent Lands
(not Agent Perez) was the officer who returned the passports; in his declaration, Agent Perez
averred that he “informed [Agent Lands] to release Mr. Rynearson and to return Rynearson’s
passports and send him on his way.” ROA. 266. In addition, the agents’ voices are clearly
distinguishable on the videotape, and Agent Lands is the one speaking when Rynearson
receives his passports and is informed that he may leave.
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      The Supreme Court has made clear that while the Fourth Amendment
permits routine, suspicionless stops at fixed checkpoints near the border, the
scope of such stops is “quite limited.” United States v. Martinez–Fuerte, 428
U.S. 543, 557, 562 (1976). “[A]ll that is required of the vehicle’s occupants is a
response to a brief question or two and possibly the production of a document
evidencing a right to be in the United States.” Id. at 558 (internal quotation
marks omitted).     Moreover, this court has held that “[t]he scope of an
immigration checkpoint stop is limited to the justifying, programmatic purpose
of the stop: determining the citizenship status of persons passing through the
checkpoint.” United States v. Machuca–Barrera, 261 F.3d 425, 433 (5th Cir.
2001). “It follows that the permissible duration of an immigration stop is the
‘time reasonably necessary to determine the citizenship status of the persons
stopped.’” United States v. Portillo–Aguirre, 311 F.3d 647, 653 (5th Cir. 2002)
(quoting Machuca–Barrera, 261 F.3d at 433).
      “An officer may ask questions outside the scope of the stop, but only so
long as such questions do not extend the duration of the stop.” Machuca–
Barrera, 261 F.3d at 432. “Conversely, when officers detain travelers after the
legitimate justification for a stop has ended, the continued detention is
unreasonable.” Portillo–Aguirre, 311 F.3d at 654. “[A]ny further detention
beyond a brief question or two or a request for documents evidencing a right to
be in the United States must be based on consent or probable cause,” Portillo–
Aguirre, 311 F.3d at 652, or upon reasonable suspicion, Machuca–Barrera, 261
F.3d at 434. Even a three-minute extension beyond a detention’s permissible
duration is cognizable as a Fourth Amendment violation. See Portillo–Aguirre,
311 F.3d at 654.
      By making Rynearson wait for thirty-four minutes, ignoring a verbal
affirmation of U.S. citizenship, and rejecting multiple forms of identification,
Agents Lands and Perez far exceeded the scope of the immigration-checkpoint
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inquiry as the Supreme Court defined it in Martinez–Fuerte. Putting aside the
dilatory nature of the stop as a whole, at a bare minimum, once Rynearson
offered his passports to Agent Lands, any further detention other than the
couple of minutes required to authenticate the passports was unnecessary.
The State Department may issue passports only to United States citizens and
non-citizen nationals. 22 U.S.C. § 212. As detailed above, Agent Lands refused
to even look at the passports, and Agent Perez did not simply verify the
passports’ authenticity—he asked for the identity of Rynearson’s commanding
officer and wasted ten to fifteen minutes placing unnecessary phone calls to
military law enforcement.
       One cannot escape the impression that Agent Lands’s refusal to look at
the passports and Agent Perez’s irrelevant phone calls to Rynearson’s
employer operated as retribution against Rynearson for asserting his rights;
about three minutes into the stop, a fellow officer even pointed out the cameras
in Rynearson’s car. But putting that to one side, 6 after Rynearson offered his
passports, Agents Lands and Perez needed only to examine them to determine
whether Rynearson was a United States citizen. Therefore, Agents Lands and
Perez detained Rynearson longer than “reasonably necessary to determine the
citizenship status of the person[] stopped.” 7 Machuca–Barrera, 261 F.3d at
433.




       6 Evidence of a defendant’s subjective intentions is not relevant to the qualified-
immunity defense. See Harlow v. Fitzgerald, 457 U.S. 800, 817–19 (1982); Crawford–El v.
Britton, 523 U.S. 574, 588 (1998).

       7 The length of the detention cannot be justified on the alternative basis of reasonable
suspicion. At oral argument, the government correctly conceded that “this is not a Terry
case.” A drug dog did not alert when agents led it behind the car. Later, Rynearson asked
Agent Lands several times whether he had reasonable suspicion to detain him; Agent Lands
insisted that the detention did not require it. When Rynearson asked whether Agent Lands
believed that Rynearson had violated an immigration law, Agent Lands responded, “I didn’t
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                                  No. 13-51114
      In addition, I would hold that at the very least, Agents Lands and Perez
failed to demonstrate entitlement to qualified immunity with respect to the
twenty-three minutes of detention that followed Rynearson’s offer to show
Agent Lands his passports. In light of Martinez–Fuerte, Machuca–Barrera,
and Portillo–Aguirre, and on the record as it currently stands in this case, no
reasonable officer would believe that he could lawfully detain a traveler for
twenty-three minutes after the traveler presents a valid U.S. passport—better
evidence of United States citizenship than the state-issued forms of
identification that highway travelers most frequently carry on their person.
Far more than simply ask Rynearson to give the limited information that the
Supreme Court allows officers to demand at fixed border checkpoints—“a
response to a brief question or two and possibly the production of a document
evidencing a right to be in the United States,” Martinez–Fuerte, 428 U.S. at
558—Agents Lands and Perez were dissatisfied with four forms of government-
issued identification and a verbal affirmation of United States citizenship. All
that remained after Rynearson’s offer to surrender his passports was to
authenticate them. On the present record, no reasonable officer—in light of
Martinez–Fuerte, Machuca–Barrera, and Portillo–Aguirre—would believe that
he was entitled to take an additional twenty-three minutes while ignoring the
passports and placing phone calls to Rynearson’s employer.
                                           III.
      Firm assertions of one’s rights are far from “unorthodox” in a Republic
that insists constitutional rights are worth insisting upon and that tasks the
courts with protecting those rights. See, e.g., Brown v. Texas, 443 U.S. 47, 52–




say you violated an immigration law.” Indeed, Agent Lands insisted that he needed no
articulable reason at all to detain Rynearson.


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53 (1979) (holding that without reasonable suspicion, police may not require
citizens to stop and identify themselves); Kolender v. Lawson, 461 U.S. 352,
353–54 (1983) (invalidating a stop-and-identify statute on vagueness grounds).
Government officials, like the defendants in this case, often contend that
“[f]ailure to conform is ‘insubordination,’” W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 629 (1943), but it is the courts that must draw the line “between
authority and rights of the individual,” id. at 630. In drawing this line, we do
not rely upon “whether . . . we would think” complying with an official’s
commands “to be good, bad or merely innocuous.” Id. at 634. “Nor does our
duty to apply the Bill of Rights to assertions of official authority depend upon
our possession of marked competence in the field where the invasion of rights
occurs.” Id. at 639. Rather, “we act in these matters not by authority of our
competence” or by our perception of the plaintiff’s actions, “but by force of our
commissions.” Id. at 640.
      Agents Lands and Perez failed to demonstrate their entitlement to
qualified immunity because the law is clearly established that immigration
officials may not detain travelers longer than reasonably necessary to
investigate their citizenship status. For the foregoing reasons, I would reverse
the judgment of the district court and remand for further proceedings.




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