Case: 15-41233          Document: 00513782263              Page: 1   Date Filed: 12/02/2016




                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                                                                                 United States Court of Appeals

                                          No. 15-41233
                                                                                          Fifth Circuit

                                                                                        FILED
                                        Summary Calendar                         December 2, 2016
                                                                                   Lyle W. Cayce
JAMES MORROW,                                                                           Clerk


                 Plaintiff–Appellee,

v.

BARRY WASHINGTON,

                 Defendant–Appellant;

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WILLIAM PARSONS; JAVIER FLORES,


                 Plaintiffs–Appellees,

v.

BARRY WASHINGTON,

                 Defendant–Appellant;

------------------------------------------------------------------------

DALE AGOSTINI,

                 Plaintiff–Appellee,

v.

BARRY WASHINGTON, City of Tenaha Deputy City Marshal, in his
Individual and Official Capacity,
      Case: 15-41233          Document: 00513782263              Page: 2   Date Filed: 12/02/2016



                                            No. 15-41233
                 Defendant–Appellant;

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JAMIE ROBERT JARRETT; IGNACIO MANUEL DELACRUZ,

                 Plaintiffs–Appellees,

v.

BARRY WASHINGTON,

                 Defendant–Appellant.




               Appeal from the United States District Court
                      for the Eastern District of Texas
        USDC Nos. 2:11-CV-467; 2:11-CV-499; 2:12-CV-256; 2:12-CV-497


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Barry Washington appeals the district court’s denial of his motion for
summary judgment on the grounds of qualified immunity. Because the district
court potentially relied exclusively on impermissible evidence in denying
Washington qualified immunity on Plaintiffs’ Fourth Amendment claims, we
remand the case to the district court for further proceedings not inconsistent
with this opinion.




        *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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                                       No. 15-41233
                                               I
       This suit arises from four separate traffic stops and ensuing detentions,
searches, seizures, and arrests that occurred in Shelby County, Texas. 1
Plaintiffs claim that Washington, Deputy City Marshall for the City of Tenaha,
Texas, along with other local officials, conspired to develop a “stop and seize”
practice, or “interdiction program” designed to target motorists on the basis of
their race, and to seize funds from such motorists to “enrich [defendants]
and/or their offices.” At this juncture, only Washington remains a defendant;
all other defendants have settled their claims.
       Plaintiffs     present     three     claims     for    monetary       relief   against
Washington: (1) a 42 U.S.C. § 1983 claim for violating their right to be free
from unreasonable searches and seizures under the Fourth Amendment, (2) a
§ 1983 claim for violating their Fourteenth Amendment rights to equal
protection of the law, and (3) a § 1985(3) claim alleging that the officials
conspired, via the interdiction program, to racially profile motorists and to
seize motorists’ valuables to “enrich themselves and/or their offices.” To the
extent Washington was not an active participant during a particular stop,
Plaintiffs allege that he can be held liable via his role as a conspirator in the
interdiction program.
       Plaintiffs’ actions were consolidated for pretrial purposes and referred to
a magistrate. Washington then moved for summary judgment on grounds of




       1 Plaintiffs initially filed suit alongside numerous other motorists in Morrow v.
Washington et al. (Morrow I), alleging that local officials conspired to develop an interdiction
program that racially profiled motorists in violation of the Fourth and Fourteenth
Amendments. See Morrow I, 277 F.R.D. 172, 178 (E.D. Tex. 2011). After the district court
in Morrow I certified a class for injunctive relief but denied class treatment for claims for
damages, see id. at 202-03, Plaintiffs filed individual actions seeking monetary relief; it is
these actions that form the subject of this appeal.
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                                     No. 15-41233
qualified immunity as to all four consolidated actions, citing law pertinent only
to Plaintiffs’ Fourth Amendment claims.
      At a hearing on the motions, the magistrate queried why Washington’s
motion was styled as a full summary judgment motion, yet neglected to address
Plaintiffs’ conspiracy and Fourteenth Amendment allegations. Washington’s
counsel responded that the conspiracy allegations were not material in
determining whether Plaintiffs had alleged violations under the Fourth
Amendment.        He further opined that Plaintiffs could not show Fourth
Amendment violations under the objective reasonableness standard, and that
failure would preclude their equal protection claim.
      After the parties submitted supplemental briefing, the magistrate
denied Washington qualified immunity.              Though the magistrate did not
explicitly identify which claims it intended to address, the report and
recommendation issued by the magistrate (the R&R) appears limited to
Plaintiffs’ Fourth Amendment claims and corresponding § 1983 conspiracy
allegations.
      In a brief order, the district court adopted the magistrate’s conclusions.
This interlocutory appeal followed.
                                           II
      This court may immediately review the denial of a motion for summary
judgment based on qualified immunity “to the extent that it turns on an issue
of law.” 2     Though we lack jurisdiction to review the district court’s
determination that genuine issues of fact exist, we may “address the legal
question of whether the genuinely disputed factual issues are material for the
purposes of summary judgment.” 3 We review the district court’s resolution of


      2  Lytle v. Bexar Cty., 560 F.3d 404, 408 (5th Cir. 2009) (quoting Flores v. City of
Palacios, 381 F.3d 391, 393 (5th Cir. 2004)).
       3 Id.

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                                      No. 15-41233
such legal issues de novo. 4 In conducting our review, we are “required to view
the facts and draw reasonable inferences in the light most favorable to the
party opposing the summary judgment motion.” 5
                                            III
       Given the ambiguity surrounding the scope of Washington’s summary
judgment motion and the magistrate’s R&R, we begin our analysis by detailing
the scope of this appeal. In his reply brief, Washington clarifies that his
summary judgment motion was limited to Plaintiffs’ Fourth Amendment
claims and he “appeal[s] the denial of qualified immunity only with respect to
the Fourth Amendment claims and the conspiracy claims insofar as they relate
to alleged violations of the Fourth Amendment.”
       Qualified immunity protects government officials to the extent “their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” 6 In resolving claims of
qualified immunity this court asks “(1) whether the facts that the plaintiff has
alleged make out a violation of a constitutional right; and (2) whether the right
at issue was clearly established at the time of the defendant’s alleged
misconduct.” 7
       Washington argues that the magistrate impermissibly relied on evidence
illustrative of the subjective intentions of the officers, which, while perhaps
relevant to the conspiracy allegations and equal protection claims, are not
material in determining whether Plaintiffs put forth evidence of Fourth
Amendment violations of clearly established law. If Washington is correct, the
district court erred.


       4 Id. at 409.
       5 Id. (quoting Scott v. Harris, 550 U.S. 372, 378 (2007).
       6 Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (quoting Brown v. Strain, 663
F.3d 245, 249 (5th Cir. 2011)).
       7 Id. (quoting Brown, 663 F.3d at 249).

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                                        No. 15-41233
       “A conspiracy may be charged under section 1983 as the legal mechanism
through which to impose liability on all of the defendants without regard to
who committed the particular act, but ‘a conspiracy claim is not actionable
without an actual violation of section 1983.’” 8               In the qualified immunity
context, courts must “first . . . determine the objective reasonableness of the
state action which is alleged to have caused harm to the plaintiff.” 9 Only if
that action was not objectively reasonable should the court then “look to
whether the officer’s actions were taken pursuant to a conspiracy.” 10 If all
defendants “alleged to have violated [a plaintiff’s rights] are entitled to
qualified immunity . . . [,] the conspiracy claim is not actionable.” 11
       “The Fourth Amendment protects ‘[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’” 12      In conducting a Fourth Amendment inquiry, “[w]e ask
whether the circumstances, viewed objectively, justify [the challenged]
action . . . [,] whatever the subjective intent motivating the relevant officials.” 13
       As indicated above, in a case alleging both Fourth Amendment violations
and a § 1983 conspiracy, the proper order of review is first whether Plaintiffs’
have alleged a constitutional violation that is objectively unreasonable in light



       8  Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995) (quoting Pfannstiel v. City of
Marion, 918 F.2d 1178, 1187 (5th Cir. 1990), abrogated on other grounds by Martin v.
Thomas, 973 F.2d 449, 455 (5th Cir. 1992)).
        9 Pfannstiel, 918 F.2d at 1187; see also Hill v. City of Seven Points, 31 F. App’x 835, *8

(5th Cir. 2002).
        10 Pfannstiel, 918 F.2d at 1187; see also Hill, 31 F. App’x at *8.
        11 Hale, 45 F.3d at 921.
        12 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
        13 Id. (citations and internal quotations omitted); United States v. Lopez-Moreno, 420
F.3d 420, 432 (5th Cir. 2005) (“[T]he Court . . . has made clear that an officer’s subjective
motivations are irrelevant in determining whether his or her conduct violated the Fourth
Amendment.”); Goodwin v. Johnson, 132 F.3d 162, 173 (5th Cir. 1998) (“So long as a traffic
law infraction that would have objectively justified the stop had taken place, the fact that the
police officer may have made the stop for a reason other than the occurrence of the traffic
infraction is irrelevant for purposes of the Fourth Amendment.”).
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                                       No. 15-41233
of clearly established Fourth Amendment law, and only if that is the case
should the court then consider whether Plaintiffs have alleged a conspiracy.
The conspiracy allegations, and any appendant evidence of subjective intent,
do not inform factual analysis respecting alleged Fourth Amendment
violations in these specific stops. The pertinent threshold question remains
whether material fact disputes exist to support a violation of Fourth
Amendment law under the objective reasonableness standard.
       This analytical structure is not altered by the fact that Plaintiffs also
allege equal protection claims, which provide a separate cause of action and
corresponding analysis. 14 The Supreme Court made the distinction between
Fourth Amendment and Equal Protection claims clear in United States v.
Whren—
             We think [precedent] foreclose[s] any argument that the
       constitutional reasonableness of traffic stops depends on the actual
       motivations of the individual officers involved. We of course agree
       with petitioners that the Constitution prohibits selective
       enforcement of the law based on considerations such as race. But
       the constitutional basis for objecting to intentionally
       discriminatory application of laws is the Equal Protection Clause,
       not the Fourth Amendment. Subjective intentions play no role in
       ordinary, probable-cause Fourth Amendment analysis. 15




       14  See Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533 (6th
Cir. 2002) (stating that the Supreme Court has “confirmed that an officer’s discriminatory
motivations for pursuing a course of action can give rise to an Equal Protection claim, even
where there are sufficient objective indicia of suspicion to justify the officer’s actions under
the Fourth Amendment”); Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002) (“The
fact that there was no Fourth Amendment violation does not mean that one was not
discriminatorily selected for a search [in violation of the Fourteenth Amendment’s equal
protection guarantee].”); United States v. Miller, 146 F.3d 274, 279 n.3 (5th Cir. 1998) (“[A]s
the Whren Court makes clear, the leeway allowed regarding subjective intent [in the Fourth
Amendment context] does not protect any discriminatory application of laws that would
violate the Fourteenth Amendment.”).
        15 Whren v. United States, 517 U.S. 806, 813 (1996).

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                                  No. 15-41233
      Upon a review of the magistrate’s R&R, adopted by the district court, we
are unable to ascertain whether the magistrate impermissibly considered the
officers’ alleged subjective intent to conclude that material fact disputes
existed regarding violations of clearly established Fourth Amendment law.
      In the R&R, the magistrate detailed each party’s version of events for
each stop. In several of the accounts, the magistrate cited “statistical evidence”
offered by Plaintiffs bearing on the officers’ alleged intent to racially profile
motorists. This statistical evidence, as presented in Plaintiffs’ responses to
Washington’s motions for summary judgment, demonstrates that minority
motorists were stopped at a substantially greater rate as a result of the
interdiction program. It is notable that Plaintiffs offered this evidence in
conjunction with their Fourteenth Amendment claims.
      The magistrate also cited evidence reflective of subjective intent in his
legal analysis of the Fourth Amendment claims. The magistrate opined:
            There is ample evidence in this record to lead a reasonable
      juror to find that Washington, and his alleged co-conspirator
      Whatley, made these stops without any factual basis, but rather to
      pull over cars they felt might have cash or contraband based on the
      appearance of the motorists. The fact that Washington did not
      have a working video camera in his patrol car, that he picked
      obscure violations as his reasons to stop the cars, that he
      acknowledged an intent to seize as much cash as possible, and that
      his charges were dismissed whenever they faced the possibility of
      actually going to court, all support such a conclusion. These
      concerns are buttressed by the statistical evidence and the expert
      report concerning the shortcomings of the K-9 evidence.
            In addition to Plaintiff’s evidence of a conspiracy, the
      Plaintiffs present evidence contradicting the version of the facts
      set forth by Washington and Whatley. There are clear fact
      disputes about the true basis for the stops, the later development
      of probable cause for the searches, and whether any evidence
      supported the arrests and seizures relating to each of the
      Plaintiffs.


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                                       No. 15-41233
It appears that the magistrate’s summary of the conspiracy allegations
encompasses evidence of the officers’ purported subjective intent. Further, it
appears intended to buttress the magistrate’s determination that factual
disputes pertaining to a Fourth Amendment violation exist, not merely that
liability can be extended to Washington for violations committed by other
officers only after determining that Fourth Amendment liability could be
found.
      The magistrate’s statement that “[t]here are clear fact disputes about
the true basis” for the stops, searches, arrests, and seizures could have been
intended to acknowledge fact disputes untethered to the officers’ subjective
intentions. But while the magistrate specified factual disputes relevant to
conspiracy, it was merely conclusory as to whether the Plaintiffs disputed the
officers’ arguments that their conduct was objectively grounded. We have held
that when a district court does not identify the factual disputes it found
relevant, this court may remand the case for clarification. 16 We choose to do
so here.
      It may be the case, on remand, that any error in considering the officers’
subjective motivations is harmless insofar as Plaintiffs have raised a factual
dispute regarding the alleged Fourth Amendment violations even absent
evidence of the officers’ subjective intent. We leave this inquiry to the district
court and express no view on the proper outcome.
      Given that Washington does not seek qualified immunity on the equal
protection or the § 1985 conspiracy claims, the district court’s review should be
limited to whether Plaintiffs have alleged violations of clearly established
Fourth Amendment law sufficient to defeat summary judgment based on
qualified immunity. The only factual disputes material to that analysis are


      16   See Thompson v. Upshur Cty., 245 F.3d 447, 456 (5th Cir. 2001).
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                                       No. 15-41233
those reflecting a dispute as to the officers’ proffered reasons for each stop,
detention, search, seizure and arrest, without reference to whether the officers’
justifications constitute mere pretext.
       We further advise that the district court consider whether it is disputed
that probable cause existed at each stage of the officers’ dealings with the
Plaintiffs. For example, Washington may be entitled to qualified immunity for
a search or a subsequent seizure of funds, notwithstanding a determination
that qualified immunity would not be appropriate for the initial stop. This
principle derives from our prior rejection of the exclusionary rule in the civil
context. 17
       We note for clarity that the district court’s resolution of qualified
immunity on the Fourth Amendment claims should have no bearing on the
viability of Plaintiffs’ Fourteenth Amendment claims. 18
                                       *       *        *
       This case is remanded to the district court for further proceedings not
inconsistent with this opinion.




       17 See Wren v. Towe, 130 F.3d 1154, 1158-60 (5th Cir. 1997) (holding that officers were
entitled to qualified immunity for the seizure of a vehicle based on evidence found in the
vehicle, even assuming the search of that vehicle was unlawful); see also Black v. Wigington,
811 F.3d 1259, 1268 (11th Cir. 2016) (“We now join our sister circuits and hold that the
exclusionary rule does not apply in a civil suit against police officers.”).
       18 See supra n.14.

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