On September 10, 2020, the Fifth Circuit Court of Appeals decided Nerio v. Evans[i], in which the court examined whether officers were entitled to qualified immunity for arresting the wrong person under a warrant, after a drug investigation.  The facts of Nerio, taken directly from the case, are as follows:

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 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.[ii]

Nerio filed suit in federal court and alleged the officers violated the Fourth Amendment by arresting him instead of his half-brother with the same name. The district court granted qualified immunity for the officers and held that the law was not clearly established such that every other reasonable officer would have known it violated the Fourth Amendment to mistakenly arrest the wrong person under a warrant.  Neiro appealed the grant of qualified immunity to the Fifth Circuit Court of Appeals.

The issue on appeal was whether the officers were entitled to qualified immunity when they arrest Appellant Nerio instead of his half-brother, the actual drug suspect.

The court first noted that to overcome an officer’s motion for qualified immunity, the plaintiff must show (1) that the officer(s) violated the constitution, and (2) that the law was clearly established at the time of the violation such that every other reasonable officer would have been on notice that the conduct was unlawful.  The court further stated

[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, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004) (per curiam); see also Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (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 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, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (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).[iii]

The court then set out to examine relevant precedent for the issue at hand.  First, the court examined Baker v. McCollan[iv], from the Supreme Court.  This case also involved two brothers that had similar names.   One of the brothers, Leonard, forged a fake identification that used his brother, Linnie’s information but with Leonard’s photograph.  Leonard was arrested on drug charges but used the ID with Linnie’s information.  Leonard bonded out but later became “wanted” by warrant in the case.  Linnie was arrested under that warrant.  Several days later, deputies realized the photo’s depicted different people, and Linnie was released.  He sued Sheriff Evans.  The Supreme Court ultimately held that

[Linnie] 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.[v]

The court further stated that Baker does not help Nerio for two reasons.  First, it held that there was no Fourth Amendment violation.  Second, the reasoning in Baker was that Sheriff Evans was liable for not having policies in place to prevent such mistakes.  However, the court stated there was nothing in the Constitution to suggest that the sheriff must second-guess and verify his deputies’ work.

The Fifth Circuit also examined another Supreme Court case, Hill v. California.[vi]  In Hill, officers went to Miller’s residence with a warrant to arrest Miller.  Hill was present and Miller was not.  Hill matched the description of Miller but gave the officers an identification in his real name, Hill.  Since he was in Miller’s apartment and met his description, they arrested him under the warrant.  He later sued.  The Supreme Court held

[T]he 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.[vii]

The Fifth Circuit then reasoned that nothing in Baker and Hill would lead the officers in Nerio’s case to believe they were violating the Fourth Amendment when they arrested him.

The Fifth Circuit also examined Fifth Circuit precedent.  They noted that they have previously held

[T]hat “reasonable mistakes by police officers, even leading to the arrest of the wrong person, do not implicate the Fourth Amendment.” Id. at 442.[viii]

Lastly, the court examined a new, and forfeited argument brought forth by Nerio.  He argued the officers violated the Fourth Amendment when Evans put false information in the warrant affidavit.  This is commonly called a Franks violation.  The court stated

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 statement in a warrant application” or omit a material fact from it. Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006).[ix]

The court noted that the three items that Nerio cited as “false,” were information provided to Evan’s by other officers.  The court said that “Evans did not recklessly disregard the truth by trusting his colleagues.”[x]

Therefore, because the law was not clearly established such that Evans and the other officers would have known it violated the Fourth Amendment to arrest Nerio, they are entitled to qualified immunity.  Further, the plaintiff forfeited his argument under Franks, an argument that would have failed nonetheless.

The Fifth Circuit then affirmed the decision of the district court.



[i] No. 19-50793 (5th Cir. Decided September 10, 2020)

[ii] Id. at 1-4

[iii] Id. at 5-6 (emphasis added)

[iv] 443 U.S. 137 (1979)

[v] Nerio at 7 (quoting Baker, 443 U.S. at 145-146) (emphasis added)

[vi] 401 U.S. 797 (1971)

[vii] Nerio at 8 (quoting Hill, 401 U.S. at 801)

[viii] Nerio at 9 (quoting Bosarge v. Mississippi Bureau of Narcotics, 796 F.3d 435, 442 (5th Cir. 2015)

[ix] Id. at 11 (emphasis added)

[x] Id. at 12

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