Carrasco v. Henkell ( 2023 )

Case: 22-50439 Document: 00516740478 Page: 1 Date Filed: 05/05/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-50439
May 5, 2023
____________
Lyle W. Cayce
Erik Carrasco Clerk
Plaintiff—Appellee,
versus
Terry Henkell,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CV-190
______________________________
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam:*
Officer Terry Henkell was sued for violating the Fourth Amendment
after he swore out an allegedly incomplete probable cause affidavit to arrest
Erik Carrasco. The affidavit did not state that, besides Erik, Henkell had
information that two other men named “Carrasco” were possible suspects.
The district court denied Henkell’s motion to dismiss based on qualified
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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immunity. We reverse and render judgment granting Henkell qualified
immunity. Even if Henkell violated the Fourth Amendment, something we
do not decide, Carrasco has not identified a single controlling precedent
showing that Henkell transgressed clearly established law.
I.
Crocket Middle School is part of the Ector County Independent
School District (“District”).1 On November 1, 2019, Officer Terry Henkell,
a member of the District’s police department, received a call from a female
seventh grader at Crocket. The student claimed that, on October 23, 2019,
her substitute teacher, “Mr. Carrasco,” inappropriately touched her breast.
Over the next several days, Henkell interviewed the victim and other
students, learning that “Mr. Carrasco” had been substituting at Crocket for
the past three weeks, was “about 21 years of age,” was “Mexican
American,” and had brown eyes. Henkell also learned about the teacher’s
TikTok account (“mlpcrybaby5”), which he advertised to students. Finally,
Henkell obtained from the District’s human resources office the names and
contact information of three persons surnamed “Carrasco” employed by the
District, one of whom was Appellee Erik Carrasco.
On November 12, 2019, Henkell phoned one of the other Carrascos
on the list but got no answer. Later that day, without calling the other two
numbers, Henkell swore out an affidavit to arrest Erik for the crime of
Indecency with a Child, a second degree felony under Texas law. See Tex.
Penal Code §§ 21.11(a)(1), (c)(1), (d); id. §§ 21.12(a)(1), (b), (e)(1). The
affidavit summarized the touching incident according to the accounts of the
victim and witnesses. It identified the suspect as “Erik Carrasco,” a “white
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1
The facts are taken from the complaint, whose well-pleaded allegations we accept
as true for purposes of evaluating the officer’s entitlement to qualified immunity. See
Terwilliger v. Reyna, 4 F.4th 270, 280 (5th Cir. 2021).
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male,” with a date of birth making him 29 years old. It also mentioned that
the suspect talked to students “about Tik Tok.” The affidavit, however, did
not explain how Henkell’s investigation linked Erik to the touching incident,
nor did it mention that Henkell had been given the names and contact
information of two other “Carrascos” employed by the District.
Erik was arrested and charged with two felonies: Indecency with a
Child and Sexual Contact and Improper Relationship between Educator and
Student. See Tex. Penal Code §§ 21.11(a)(1), (c)(1), (d); id.
§§ 21.12(a)(1), (b), (e)(1). He lost his job and had to hire an attorney, post
bond, and abide by special bond conditions. The charges against Erik were
dropped, however, when it came to light that he was the wrong Carrasco.
True, both Erik and the real suspect taught in the District and both were
Hispanic. But it turned out that Erik was a tutor at Ector Middle School, not
a substitute teacher at Crocket. Eric was 29, not 21, and he had hazel eyes,
not brown eyes. And the TikTok account contained a photo of the real
suspect that did not look like Erik.
Erik sued Henkell under 42 U.S.C. § 1983 for false arrest in violation
of the Fourth Amendment.2 Specifically, Erik alleged that Henkell recklessly
omitted material facts from his affidavit that, had they been included, would
have vitiated probable cause to arrest him. See Winfrey v. Rogers, 901 F.3d
483, 494 (5th Cir. 2018) (“[A] defendant’s Fourth Amendment rights are
violated if (1) the affiant, in support of the warrant, includes ‘a false statement
knowingly and intentionally, or with reckless disregard for the truth’ and (2)
‘the allegedly false statement is necessary to the finding of probable cause.’”
(quoting Franks v. Delaware, 438 U.S. 154, 155–56 (1978))). He sought
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2
Carrasco also claimed that Henkell violated his substantive due process rights
under the Fourteenth Amendment. The district court held that Carrasco’s claim sounds
only in the Fourth Amendment. Carrasco v. Henkell, 2022 WL 1760807, at *2–3 (W.D. Tex.
May 17, 2022). Carrasco does not appeal this ruling.
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damages for emotional distress, deprivation of liberty, loss of income, and
damage to his reputation. He also sought attorney’s fees and punitive
damages.
Henkell moved to dismiss for failure to state a claim and asserted
qualified immunity. The district court denied Henkell’s motion, holding that
Carrasco stated a Fourth Amendment claim and that Henkell is not entitled
to qualified immunity. Carrasco v. Henkell, 2022 WL 1760807, at *3–5 (W.D.
Tex. May 17, 2022). Henkell appealed.
II.
We have jurisdiction to review by interlocutory appeal the denial of a
motion to dismiss premised on qualified immunity. Ramirez v. Escajeda, 921
F.3d 497, 500 (5th Cir. 2019) (citing Brown v. Miller, 519 F.3d 231, 236 (5th
Cir. 2008)). Our review is “de novo, accepting all well-pleaded facts as true
and viewing them in the light most favorable to the plaintiff.” Brown, 519 F.3d
at 236 (citation omitted). On interlocutory appeal, however, “our review is
‘restricted to determinations of questions of law and legal issues.’” Ramirez,
921 F.3d at 500 (quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th
Cir. 2009)). Accordingly, in this posture we may review only “whether the
facts pleaded establish a violation of clearly-established law.” Id. at 501
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009)) (cleaned up).
III.
To overcome qualified immunity, Carrasco has the burden to
(1) sufficiently plead that Henkell violated the Fourth Amendment, and
(2) show that the violation was “clearly established” at the time of the
alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Club
Retro, 568 F.3d at 194. On interlocutory appeal, Henkell properly limits his
arguments to the second prong. See Ramirez, 921 F.3d at 501 & n.3
(explaining we lack jurisdiction on interlocutory appeal “to decide the
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sufficiency of the pleadings” (citing Brown, 519 F.3d at 238)). Specifically,
Henkell argues that Carrasco failed to identify controlling precedent showing
that he violated clearly established law and that, accordingly, the district
court erred in denying his motion to dismiss based on qualified immunity. We
agree.
According to Erik’s allegations, Henkell violated the Fourth
Amendment by submitting an affidavit that recklessly omitted facts that
would have defeated probable cause. Specifically, he alleges that Henkell left
out the facts that two other District employees shared Erik’s last name and
that Henkell had not ruled out those persons before seeking a warrant to
arrest Erik. The district court agreed. Citing the now-vacated panel opinion
in Villarreal v. City of Laredo, 17 F.4th 532, 539 (5th Cir. 2021), vacated on en
banc reh’g, 52 F.4th 363, the court reasoned that Henkell’s failure to eliminate
suspects with the same last name constituted an “obvious” violation of the
Supreme Court’s decision in Franks, 438 U.S. 154. Franks held that the
Fourth Amendment entitles a defendant to a hearing on the veracity of a
warrant affidavit if he can show “deliberate falsehood” or “reckless
disregard for the truth” that would defeat probable cause. Id. at 171.
In qualified immunity cases, courts must not “define clearly
established law at too high a level of generality.” City of Tahlequah v. Bond,
142 S. Ct. 9, 11 (2021) (per curiam); see also Morgan v. Swanson, 659 F.3d 359,
373 (5th Cir. 2011) (en banc). To be clearly established, a right must be
“sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Betts v. Brennan, 22 F.4th 577, 584 (5th
Cir. 2022) (internal quotation marks omitted). Accordingly, the right must
be framed “with specificity and granularity.” Morrow v. Meachum, 917 F.3d
870, 874–75 (5th Cir. 2019). Qualified immunity thus shields officers “unless
existing precedent ‘squarely governs’ the specific facts at issue,” Kisela v.
Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 13
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(2015)), and puts that question “beyond debate,” Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011).
Those well-settled principles lead us to disagree with the district
court’s denial of qualified immunity. Instead of framing the claimed right
with specificity, the court only “recite[d] the general contours of Franks
liability.” Laviage v. Fite, 47 F.4th 402, 408 (5th Cir. 2022). But the court did
not identify a single controlling precedent holding that an officer who fails to
rule out other suspects with the same last name and similar relevant
characteristics necessarily exhibits a “reckless disregard for the truth” or
states a “deliberate falsehood.” Franks, 438 U.S. at 171. Indeed, Erik’s
counsel admitted the lack of such precedent at oral argument.3
To defeat qualified immunity, however, “[m]uch more is needed”
than the ostensible violation of a general legal principle. Laviage, 47 F.4th at
408. A court “cannot deny qualified immunity without identifying a case in
which an officer acting under similar circumstances was held to have violated
the Fourth Amendment, and without explaining why the case clearly
proscribed the conduct of that individual officer.” Joseph v. Bartlett, 981 F.3d
319, 345 (5th Cir. 2020); see also Vincent v. City of Sulphur, 805 F.3d 543, 547
(5th Cir. 2015) (“Abstract or general statements of legal principle untethered
to analogous or near-analogous facts are not sufficient to establish a right
‘clearly’ in a given context; rather, the inquiry must focus on whether a right
is clearly established as to the specific facts of the case.”).
Indeed, controlling precedent cuts against Carrasco’s position. For
instance, in Baker v. McCollan, 443 U.S. 137 (1979), the Supreme Court held
that a sheriff did not violate the Fourth Amendment when he arrested
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3
Oral Argument at 21:17, Carrasco v. Henkell (No. 22-50439),
https://www.ca5.uscourts.gov/OralArgRecordings/22/22-50439_4-3-2023.mp3.
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Leonard McCollan instead of Linnie McCollan, despite the fact that the
suspect’s available picture would have alerted the sheriff that Leonard was
the wrong man. Id. at 145–46. As the Court explained, “[g]iven the
requirements that arrest be made only on probable cause and that one
detained be accorded a speedy trial, we do not think a sheriff executing an
arrest warrant is required by the Constitution to investigate independently
every claim of innocence.” Id. at 146.
Our court has also granted qualified immunity in similar cases. For
instance, in Nerio v. Evans, 974 F.3d 571 (5th Cir. 2020), we granted qualified
immunity against a Franks claim to officers who mistakenly arrested a man
with the same name as the suspect (the two men were half-brothers). Id. at
574–75. Similarly, in Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435 (5th
Cir. 2015), we held it was not a violation of clearly established law when
narcotics agents wrongly identified the plaintiff as a participant in a drug ring
and caused him to be detained for six months. Id. at 442. We explained that
it is “well-established . . . that reasonable mistakes by police officers, even
leading to the arrest of the wrong person, do not implicate the Fourth
Amendment.” Id. (citing Heien v. North Carolina, 574 U.S. 54, 66 (2014)
(noting that the Fourth Amendment tolerates objectively reasonable
mistakes)); see also Blackwell v. Barton, 34 F.3d 298, 304 (5th Cir. 1994)
(officer was entitled to qualified immunity after he arrested a person with
“the same height and weight, sex, race, age, nickname, and at the location
where he expected to find [the suspect]”).
Because no controlling precedent would have given Henkell “fair
notice” that his conduct was unconstitutional, he is entitled to qualified
immunity. Brosseau v. Haugen, 543 U.S. 194, 198 (2004). By resolving the
case on this basis, we necessarily express no opinion whether Henkell’s
actions, as alleged in the complaint, violated the Fourth Amendment.
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IV.
We REVERSE the district court’s judgment and RENDER
judgment dismissing the case against Officer Henkell on the basis of qualified
immunity.
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