IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41233

Summary Calendar

JAMES MORROW,

 Plaintiff–Appellee,

v.

BARRY WASHINGTON,

 Defendant–Appellant;

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

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,

United States Court of Appeals

Fifth Circuit

FILED

December 2, 2016

Lyle W. Cayce

Clerk

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2

 Defendant–Appellant;

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

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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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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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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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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“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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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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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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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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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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