Nerio v. Evans, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-50793

Carlos Henry Nerio II,

Plaintiff—Appellant,

versus

Derek Evans, Peace Officer at the Texas Department of
Public Safety, in his individual capacity; Amy King, CID
Special Agent by the Texas Department of Public
Safety, in her individual capacity,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-37

Before King, Graves, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
This is a case of mistaken identity. Carlos Nerio argues that narcotics
officers violated the Constitution when they mistakenly arrested him instead
of his half-brother—also named Carlos Nerio. The district court granted
qualified immunity to the officers. We affirm.
United States Court of Appeals
Fifth Circuit
FILED
September 10, 2020

Lyle W. Cayce
Clerk
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I.
Narcotics officers from the Texas Department of Public Safety
(“DPS”) used court-authorized pen registers and wiretaps to collect
evidence of a meth deal in Austin. The meth purchaser’s phone number was
registered to Carlos Nerio. A DPS surveillance unit also witnessed a meth
purchase. The purchaser was driving a silver Chevrolet pickup truck with a
license plate that also was registered to Carlos Nerio.
DPS officers attempted to use Nerio’s phone and truck to find his
address. Officers traced Nerio’s phone number to 7112 Ed Bluestein
Boulevard. That’s a Cricket Wireless store—not Nerio’s residence. Officers
traced the Chevy truck to a house on Tapo Lane in Austin. They also
confirmed that Carlos Nerio lived at the Tapo Lane address.
The problem is that the Carlos Nerio who purchased the Cricket
phone and lived on Tapo Lane is not the Appellant Carlos Nerio. The two
Nerios are half-brothers; they share a father and (obviously) names. The
record abounds with mistakes over which Nerio is which. The Appellant
went by at least three different variations of “Carlos Nerio.” And the
cognomen confusion was so severe that Appellant Nerio’s own lawyer
misidentified him in an affidavit. For our part, we refer to the two Nerios as
“Appellant Nerio” and “Tapo Lane Nerio.”
1

One of the officers supervising the meth investigation, Lieutenant
Leggett, asked for driver’s license information for the Carlos Nerio who

1
The record identifies Tapo Lane Nerio as “Carlos Henry Nerio, Jr.,” whereas
Appellant Nerio gives his name as “Carlos Henry Nerio II” in his initial complaint and in
his filings in this court. During one of his depositions, however, Appellant Nerio said he
sometimes goes by Carlos Henry Nerio, Jr. Finally, Appellant Nerio signed an affidavit in
2019 giving his name as “Carlos Henry Nerio, III.” During oral argument, Appellant
Nerio’s counsel confirmed that he misidentified his client in the affidavit.
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drove the silver Chevy truck to the meth deal—that is, the Tapo Lane Nerio.
Then, for reasons unrevealed in the record, some unidentified DPS official
found and produced license information for Appellant Nerio. Leggett sent
Appellant Nerio’s license information to Officer King. King showed
Appellant Nerio’s license photo to the DPS surveillance unit. And the
surveillance officers confirmed that Appellant Nerio was present at the drug
deal. But at least one member of the surveillance unit, Officer Evans,
eventually learned that the driver’s license database contained information
for two different individuals named Carlos Nerio.
King met with an assistant DA, and they decided to seek an arrest
warrant for Appellant Nerio. King then tasked Evans with drafting an
affidavit and applying for the warrant. Evans dutifully did so. His affidavit
described the extensive investigation that led to Appellant Nerio’s
identification, though it did not mention that two Nerios appeared in the
driver’s license database. A magistrate authorized the warrant.
DPS officers then executed the warrant and arrested Appellant Nerio.
He was charged with conspiracy to commit felony manufacturing/delivery of
a controlled substance. Local news covered the arrest. As a result, Appellant
Nerio lost his job. Eventually, however, he convinced the local DA to drop
the charges against him.
Appellant Nerio then sued Evans and King under 42 U.S.C. § 1983.
He framed his complaint in terms of false arrest and false imprisonment and
claimed that the pair of officers violated his rights under the Fourth and
Fourteenth Amendments. The officers moved to dismiss the suit. The
district court dismissed the Fourteenth Amendment claims but denied the
rest of the officers’ motion to dismiss.
Next, the officers moved for summary judgment. The district court
referred the matter to a magistrate. The magistrate determined that a lack of
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“clearly established law” on mistaken-identity arrests meant Evans and King
weren’t on notice that their conduct might be unconstitutional. The district
court agreed and entered summary judgment in favor of Evans and King on
the basis of qualified immunity. Nerio appealed and limited his challenge to
the judgment concerning Evans.
Our review is de novo. See Morrow v. Meachum, 917 F.3d 870, 874 (5th
Cir. 2019).
II.
Evans is entitled to qualified immunity unless Appellant Nerio can
show two things: first, that Evans violated a statutory or constitutional right,
and second, that “the right at issue was clearly established at the time of
defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232
(2009) (quotation omitted). The Supreme Court does not mandate an order
of operations, so we can affirm a qualified-immunity award by answering
either question or both. See id . at 236. The district court focused on the
second question. We do the same and affirm.
A.
The Fourth Amendment protects the “right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. “Because arrests are ‘seizures’ of
‘persons,’ they must be reasonable under the circumstances.” District of
Columbia v. Wesby, 138 S. Ct. 577, 585 (2018). Yet “[q]ualified immunity
shields an officer from suit” unless that “officer had fair notice that her
conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“[Q]ualified
immunity operates to ensure that before they are subjected to suit, officers
are on notice their conduct is unlawful.” (quotation omitted)). Fair notice
requires clearly established law. That is, the law must “clearly prohibit the
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officer’s conduct in the particular circumstances before him” so “every
reasonable official” knows not to engage in that conduct. Wesby, 138 S. Ct. at
590; see also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
“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.” Vincent v. City of
Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). To show the law is clearly
established, a party must “identify a case where an officer acting under
similar circumstances . . . was held to have violated the Fourth Amendment.”
Wesby, 138 S. Ct. at 590 (emphasis added) (quotation omitted).
We cannot find a case that would’ve given Evans “fair notice” that
his conduct might be unconstitutional. Brosseau, 543 U.S. at 198. Therefore,
Appellant Nerio has not shown that the violative nature of Evans’s particular
conduct was clearly established at the time of the arrest.
Start with Baker v. McCollan, 443 U.S. 137 (1979). That case also
involved two brothers with similar names—Leonard McCollan and Linnie
McCollan. Id. at 140. Somehow, Leonard managed to acquire an exact copy
of Linnie’s driver’s license—save that “‘Leonard’s picture graced it instead
of Linnie’s.’” Ibid. (quoting McCollan v. Tate, 575 F.2d 509, 511 (5th Cir.
1978)). By getting arrested for drug charges and pretending to be his brother
all the way through the moment he was bailed out of jail, Leonard sullied his
brother’s good name. Id. at 140–41. After Linnie ran a red light, officers ran
a warrant check and thought they found a wanted man. Id. at 141. They took
Linnie into custody, and officials cross-referenced his identification with
records from his brother’s arrest on narcotics charges. Ibid. Thanks to
Leonard’s fake ID, the records lined up. And poor Linnie sat in jail for several
days. Id. at 140–41. Only after officers examined a picture of the wanted man
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(i.e., Leonard) did they realize they’d made a mistake. That’s when they
released Linnie. Id. at 141.
Linnie sued the county sheriff “for the intentional failure to
investigate and determine that the wrong man was imprisoned.” Id. at 143.
The Supreme Court held he had no cognizable claim under 42 U.S.C. § 1983.
Id. at 146–47. That wasn’t to say that the Court blessed the sheriff’s conduct.
It simply meant that “[w]hatever claims [Linnie’s] situation might give rise
to under state tort law, . . . it gives rise to no claim under the United States
Constitution.” Id. at 144. In so holding, the Court noted that the
“Constitution does not guarantee that only the guilty will be arrested” nor
does it require officials “to perform an error-free investigation” of mistaken-
identity claims. Id. at 145–46.
Baker does not help Appellant Nerio for two reasons. First, it held
there was no Fourth Amendment violation. Id. at 146. And to clearly establish
the violative nature of an officer’s conduct, a prior decision must at least hold
there was some violation of the Fourth Amendment. See Wesby, 138 S. Ct. at
590. Second, the theory of liability in Baker was that the defendant sheriff
himself had erred by failing to institute measures that would have uncovered
the misidentification. See Baker, 443 U.S. at 141–43. Here, however, Evans
wasn’t the one who searched the driver’s license database, and hence Evans
wasn’t the one who misidentified Appellant Nerio. Nothing in Baker would
have led a reasonable officer in Evans’s position to think the Constitution
required him to second-guess other officers.
Nor does Hill v. California, 401 U.S. 797 (1971), help Appellant Nerio.
There, police arrested a man named Miller thinking he was actually a man
named Hill. Id. at 799. Miller told police he wasn’t Hill and produced ID to
corroborate that assertion. Ibid. Even so, Miller matched the description of
Hill and was inside Hill’s apartment when police arrived; those two facts
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convinced the Court that “the officers’ mistake was understandable and the
arrest a reasonable response” to the situation. Id. at 803–04. The Court
therefore held that the officers had not committed a constitutional violation.
Id. at 801. As in Baker, the absence of a holding that some officer violated an
arrestee’s constitutional right means that Hill falls short of giving Evans
notice that arresting Nerio might be unconstitutional. See Wesby, 138 S. Ct.
at 590. So Hill does not clearly establish the law.
Circuit precedent doesn’t help Appellant Nerio either.
2
In Bosarge v.
Mississippi Bureau of Narcotics, two officers surveilled a drug deal in a Best
Buy parking lot. 796 F.3d 435, 437 (5th Cir. 2015). Officers traced the
suspect’s vehicle to a Mindi Bosarge and the suspect’s cell phone to a
Charles Bosarge. Ibid. The officers then arrested the plaintiff—a different
Charles Bosarge—and he was detained for six months. Id. at 436, 443. The
plaintiff said the officers had gotten it all wrong—that when the officers were
surveilling the Best Buy drug deal, he was working a 12-hour shift on a shrimp
boat. Id. at 437. And he said that the officers’ mistaken identification must
have been unconstitutional because he did not look like the man the officers
had actually seen. Id. at 436–37.
We carefully considered the plaintiff’s claims and found them
wanting. We noted that “reasonable mistakes by police officers, even leading
to the arrest of the wrong person, do not implicate the Fourth Amendment.”
Id. at 442. And the officers’ identification of the plaintiff was just that sort of
mistake. We therefore concluded that the officers hadn’t violated his Fourth

2
Although we know the Supreme Court’s decisions can clearly establish the law,
the Supreme Court has never held that our decisions can do the same. See Wesby, 138 S. Ct.
at 591 n.8 (“We have not yet decided what precedents—other than our own—qualify as
controlling authority for purposes of qualified immunity.”).
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Amendment rights at all, much less any rights that were clearly established.
Id. at 443.
Bosarge does not clearly establish the unlawfulness of Evans’s conduct
in this case. For one thing, its holding that there was no Fourth Amendment
violation renders it incapable of clearly establishing the law. See Wesby, 138
S. Ct. at 590. For another, the factual similarity between Bosarge and the case
at hand makes it difficult to see how every reasonable official in Evans’s
position would have understood that what he did violated a constitutional
right. See Al-Kidd, 563 U.S. at 741. The officers in both cases relied on a
wiretap to identify a potential drug deal, then surveilled that exchange, traced
phones and license plates back to a particular name, and eventually arrested
a man by that name. In this case and Bosarge, the arrestee argued that he
looked little like the real criminal surveilled by officers. And Bosarge held
there was no Fourth Amendment violation at all. That holding might have
led a reasonable officer in Evans’s position to think his conduct was
constitutional; it certainly wouldn’t have mandated the contrary conclusion.
B.
Appellant Nerio’s principal counterargument is that this is not a
mistaken-identity case at all. Rather, he says, Evans violated the law clearly
established in Franks v. Delaware, 438 U.S. 154 (1978). That case held that an
officer violates the Fourth Amendment by intentionally or recklessly
including a false statement in a warrant application. Appellant Nerio never
made this argument in his objections to the magistrate’s report and
recommendation—there he never cited, much less discussed, Franks. So he
arguably forfeited it. See Masel v. Villarreal, 924 F.3d 734, 749 (5th Cir. 2019).
Forfeited or not, the argument isn’t a winning one. Liability under
Franks requires a certain mindset and certain conduct: an officer must
intentionally, “or with a reckless disregard for the truth,” include “a false
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statement in a warrant application” or omit a material fact from it. Kohler v.
Englade, 470 F.3d 1104, 1113 (5th Cir. 2006). Among other things, Appellant
Nerio claims that Evans recklessly disregarded the truth in his warrant
application. Specifically, he alleges that Evans (1) falsely indicated that a
Facebook search linked Appellant Nerio to the cell phone used at the meth
deal; (2) listed the Cricket Wireless address as Appellant Nerio’s residence;
and (3) omitted a description of the physical dissimilarities between
Appellant Nerio’s driver’s license photo and the Tapo Lane Nerio. Based on
the record before us, Evans’s conduct does not satisfy the Franks-Kohler
standard.
Although Evans was wrong about (1) and (2), Appellant Nerio has not
shown that Evans made these statements recklessly. Evans only included the
Facebook search in his affidavit after King informed him it had taken place,
and King honestly believed another agent had run the search. Perhaps Evans
could have done more to corroborate King’s assertion, but Evans did not
recklessly disregard the truth by trusting his colleague. The same can be said
of including the Cricket Wireless address in the affidavit.
Nor did Evans recklessly omit (3). It’s true that the man Evans
observed at the meth deal and the man King showed him in the driver’s
license photo were not the same Nerio. It’s also true that by the time Evans
wrote the warrant affidavit, he knew the license database contained two
different Nerios. But what Evans did not know was that he and his colleagues
had identified the wrong man. In fact, Evans and the other officers on the
surveillance team looked at Appellant Nerio’s license photo and “were sure
that was the person” they’d seen during their surveillance work. And in his
deposition for this case, Evans stood fast on that point. Evans was mistaken.
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But everything in the record suggests that was “an honest mistake.”
Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994).
AFFIRMED.
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