# United States Court of Appeals **for the Fifth Circuit**

____________ No. 22-50439

____________ Erik Carrasco 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 fo r violating the Fourth Amendment after he swore out an allegedly incomple te 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 mo tion to dismiss based on qualified

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED May 5, 2023 Lyle W. Cayce Clerk Case: 22-50439 Document: 00516740478 Page: 1 Date Filed: 05/05/2023No. 22-50439

2 immunity. We reverse and render ju dgment granting Henkell qualified immunity. Even if Henkell violated the Fourth Amendment, something we do not decide, Carrasco has not iden tified 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 depart ment, received a call from a female seventh grader at Crocket. The studentclaimed 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 “about21 years of age,” was “Mexican American,” and had brown eyes. Henk ell 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 ph oned one of the other Carrascos on the list but got no answer. Later th at day, without calling the other two numbers, Henkell swore out an affida vit 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 incide nt according to the accounts of the victim and witnesses. It identified th e 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 o fficer’s entitlement to qualified immunity. See Terwilliger v. Reyna , 4 F.4th 270, 280 (5th Cir. 2021). Case: 22-50439 Document: 00516740478 Page: 2 Date Filed: 05/05/2023No. 22-50439

3 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 condit ions. The charges against Erik were dropped, however, when it came to lig ht that he was the wrong Carrasco. True, both Erik and the real suspect ta ught 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 acco unt 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 allege d that Henkell recklessly omitted material facts from his affidavi t 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 reck less 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. Case: 22-50439 Document: 00516740478 Page: 3 Date Filed: 05/05/2023No. 22-50439

4 damages for emotional distress, depriv ation of liberty, loss of income, and damage to his reputation. He also so ught attorney’s fees and punitive damages. Henkell moved to dismiss for fail ure to state a claim and asserted qualified immunity. The dist rict court denied Henke ll’s motion, holding that Carrasco stated a Fourth Amendment clai m 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-pl eaded facts as true and viewing them in the light mostfavorable to the plaintiff.” Brown , 519 F.3d at 236 (citation omitted). On interlocut ory appeal, however, “our review is ‘restricted to determinations of qu estions 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 post ure we may review only “whether the facts pleaded establish a violatio n 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 vi olated the Fourth Amendment, and (2) show that the violation was “cle arly 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 Case: 22-50439 Document: 00516740478 Page: 4 Date Filed: 05/05/2023No. 22-50439

5 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 l aw and that, accordingly, the district court erred in denying his motion to di smiss 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. Spec ifically, 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 cons tituted 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, co urts 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 quot ation marks omitted). Acco rdingly, 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 govern s’ the specific facts at issue,” Kisela v. Hughes , 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna , 577 U.S. 7, 13 Case: 22-50439 Document: 00516740478 Page: 5 Date Filed: 05/05/2023No. 22-50439

6 (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 Ci r. 2022). But the court did not identify a single controlling preceden t 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 su ch precedent at oral argument. 3 To defeat qualified immunity, ho wever, “[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 i mmunity without identifying a case in which an officer acting under similar ci rcumstances 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 contex t; rather, the inquiry must focus on whether a right is clearly established as to th e 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 Fo urth 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. Case: 22-50439 Document: 00516740478 Page: 6 Date Filed: 05/05/2023No. 22-50439

7 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 on ly on probable cause and that one detained be accorded a sp eedy trial, we do not th ink a sheriff executing an arrest warrant is required by the Cons titution 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. 20 20), 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 vi olation of clearly established law when narcotics agents wrongly identified the pl aintiff as a participant in a drug ring and caused him to be de tained for six months. Id. at 442. We ex plained that it is “well-established . . . that rea sonable mistakes by police officers, even leading to the arrest of the wrong pe rson, 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 immuni ty after he arrested a person with “the same height and weight, sex, race , age, nickname, an d at the location where he expected to find [the suspect]”). Because no controlling precedent would have given Henkell “fair notice” that his conduct was unconstitu tional, 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 complain t, violated the Fourth Amendment. Case: 22-50439 Document: 00516740478 Page: 7 Date Filed: 05/05/2023No. 22-50439

8 IV.
We REVERSE the district court’s judgment and RENDER judgment dismissing the case against O fficer Henkell on the basis of qualified immunity. Case: 22-50439 Document: 00516740478 Page: 8 Date Filed: 05/05/2023