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 for violating the Fourth Amendment 

after he swore out an allegedly incomplete 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 motion to dismiss based on qualified 

_____________________ 

*

 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 

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2 

immunity. We reverse and render judgment granting Henkell qualified 

immunity. Even if Henkell violated the Fourth Amendment, something we 

do not decide, Carrasco has not identified 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 department, received a call from a female 

seventh grader at Crocket. The student claimed 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 “about 21 years of age,” was “Mexican 

American,” and had brown eyes. Henkell 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 phoned one of the other Carrascos 

on the list but got no answer. Later that day, without calling the other two 

numbers, Henkell swore out an affidavit 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 incident according to the accounts of the 

victim and witnesses. It identified the suspect as “Erik Carrasco,” a “white 

_____________________ 

1

 The facts are taken from the complaint, whose well-pleaded allegations we accept 

as true for purposes of evaluating the officer’s entitlement to qualified immunity. See 

Terwilliger v. Reyna, 4 F.4th 270, 280 (5th Cir. 2021). 

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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 conditions. The charges against Erik were 

dropped, however, when it came to light that he was the wrong Carrasco. 

True, both Erik and the real suspect taught 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 account 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 alleged that Henkell recklessly 

omitted material facts from his affidavit 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 reckless 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 

_____________________ 

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. 

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damages for emotional distress, deprivation of liberty, loss of income, and 

damage to his reputation. He also sought attorney’s fees and punitive 

damages. 

 Henkell moved to dismiss for failure to state a claim and asserted 

qualified immunity. The district court denied Henkell’s motion, holding that 

Carrasco stated a Fourth Amendment claim 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-pleaded facts as true 

and viewing them in the light most favorable to the plaintiff.” Brown, 519 F.3d 

at 236 (citation omitted). On interlocutory appeal, however, “our review is 

‘restricted to determinations of questions 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 posture we may review only “whether the 

facts pleaded establish a violation 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 violated the Fourth Amendment, and 

(2) show that the violation was “clearly 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 

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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 law and that, accordingly, the district 

court erred in denying his motion to dismiss 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. Specifically, 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 constituted 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, courts 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 quotation marks omitted). Accordingly, 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 governs’ the specific facts at issue,” Kisela v. 

Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 13 

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(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 Cir. 2022). But the court did 

not identify a single controlling precedent 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 such precedent at oral argument.3

 

To defeat qualified immunity, however, “[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 immunity without identifying a case in 

which an officer acting under similar circumstances 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 context; rather, the inquiry must focus on whether a right 

is clearly established as to the 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 Fourth Amendment when he arrested 

_____________________ 

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. 

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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 only on probable cause and that one 

detained be accorded a speedy trial, we do not think a sheriff executing an 

arrest warrant is required by the Constitution 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. 2020), 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 violation of clearly established law when 

narcotics agents wrongly identified the plaintiff as a participant in a drug ring 

and caused him to be detained for six months. Id. at 442. We explained that 

it is “well-established . . . that reasonable mistakes by police officers, even 

leading to the arrest of the wrong person, 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 immunity after he arrested a person with 

“the same height and weight, sex, race, age, nickname, and at the location 

where he expected to find [the suspect]”). 

Because no controlling precedent would have given Henkell “fair 

notice” that his conduct was unconstitutional, 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 complaint, violated the Fourth Amendment. 

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IV. 

We REVERSE the district court’s judgment and RENDER 

judgment dismissing the case against Officer Henkell on the basis of qualified 

immunity. 

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