GABINO RAMOS HERNANDEZ v. PHILLIP CAUSEY
No. 24-60080
United States Court of Appeals for the Fifth Circuit
December 23, 2024
Lyle W. Cayce Clerk
Before ELROD, Chief Judge, DENNIS and HIGGINSON, Circuit Judges.
This appeal arises from a traffic-stop-turned-officer-shooting. After Immigration and Customs Enforcement Agent Phillip Causey shot plaintiff-appellant Gabino Ramos Hernandez, Hernandez sued Causey under
The district court correctly recognized that finding the availability of a Bivens remedy here would expand Bivens to a new context in contravention of the Supreme Court‘s guidance in Egbert. The court also correctly found that, even though Hernandez had properly pled an excessive force claim for the shooting, Causey did not act under color of state law as is required to sustain a claim under
I.
On July 20, 2016, Laurel Police Department Officer David Driskell observed Hernandez fail to come to a complete stop at a stop sign. Officer Driskell observed the vehicle behind Hernandez‘s appeared to have an intoxicated driver; the vehicle was being driven by Hernandez‘s brother, Jose Mendoza. Officer Driskell stopped both vehicles and initially tried to question Mendoza while Hernandez spent “time standing by and waiting.”1 After verbally requesting clarification on Mendoza‘s answers several times, Officer Driskell called ICE Agents McGhee and Sharff; the body camera footage showed Officer Driskell asking, “Can you assist me with some Spanish?” to request interpretation services for his questioning of Mendoza.
Officer Driskell then saw Hernandez approaching and shouted, “Do you speak English?” Hernandez responded, “What‘s the problem?” Officer Driskell indicated Mendoza and replied, “He‘s drunk.” Officer Driskell and Hernandez continued speaking for a few seconds but had trouble understanding each other. Officer Driskell said, “I tell you what, I got somebody who speaks Spanish who is coming to help me, and I‘ll talk to you then, ‘cause I don‘t understand you. So, hang tight right there, okay?” As the ICE Agents arrived, Hernandez left the area of the traffic stop. Hernandez alleges that, at some point around the time of Agent McGhee‘s arrival, he “decided to leave the scene, initially intending to simply enter his residence, but then deciding to go to his uncle‘s home nearby.”
Officer Driskell observed to Agent McGhee, “He‘s going down the block! He‘s running south!” Agent McGhee pursued on foot, shouting, “Get down! Get the f**k down!” Officer Driskell appeared to shine his flashlight at Hernandez. At the same time, other ICE agents, including Agent Causey, converged on the scene while Agent McGhee shouted directions. At minute 17:14 of Officer Driskel‘s body camera video, a shot is heard on the footage; at 18:03, Officer Driskell arrived on the scene and witnessed Agent Causey shouting, “Man, you shouldn‘t have put your hand in your f**king pocket!” The district court noted that other law enforcement witnesses corroborated Agent Causey‘s testimony that Hernandez was reaching into his pocket. Hernandez alleges that he “had
Hernandez filed suit on July 20, 2017. Hernandez initially brought claims against Causey under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
In 2022, Causey filed for reconsideration, arguing that the Supreme Court‘s ruling in Egbert v. Boule, 596 U.S. 482 (2022), limited Bivens claims such as Hernandez‘s. The district court agreed that post-Egbert, Hernandez‘s claim presented a new distinct context from prior Bivens claims and that Hernandez‘s claim was now foreclosed. The defendants then moved to dismiss Hernandez‘s remaining claims against Causey pursuant to
Hernandez then moved for leave to file a Fourth Amended Complaint, but the district court denied the motion, holding that Hernandez “fail[ed] to state an unlawful seizure claim against Causey and d[id] not allege that Causey was acting under color of state law for purposes of his excessive force claim.” The district court found that Hernandez alleged no facts to support an inference that Officer Driskell conspired with ICE to request interpretation services as a pretext, including no facts to show that Causey was part of such an alleged agreement. The district court held that Hernandez had failed to plead a constitutional violation because he did not allege that he was improperly detained prior to ICE‘s arrival and did not allege the initial traffic stop lacked probable cause. The court held that although Hernandez had plausibly alleged a claim that Causey violated his right to be free from excessive force, any amendment would be futile because
amended complaint did not plead any such circumstances. The court dismissed all claims against Causey with prejudice.2
Hernandez filed a notice of appeal from the court‘s partial judgment on February 15, 2024. On March 12, 2024, the district court certified its partial judgment for immediate appeal pursuant to
II.
“We review a district court‘s dismissal of claims under
(5th Cir. 2013). Plausibility is not akin to probability, but instead, “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Walker, 938 F.3d at 735 (quoting Iqbal). “All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiff‘s favor.” Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).3
III.
Hernandez appeals the district court‘s dismissal of his Bivens claim against Causey, arguing that his claim does not present a new Bivens context.
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court authorized damages actions against federal officers for arresting an individual in his home and searching the home “from stem to stern” without a warrant. 403 U.S. 388, 389 (1971). Bivens “broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim.” Hernandez v. Mesa, 589 U.S. 93, 99 (2020). In the decade following Bivens, the Supreme Court expanded Bivens actions to encompass a former congressional staffer‘s sex discrimination claim under the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and a federal prisoner‘s Eighth Amendment claim based on inadequate healthcare, Carlson v. Green, 446 U.S. 14 (1980).
But over the next 42 years, the Supreme Court “declined 11 times to imply a similar cause of action for other alleged constitutional violations.” Egbert v. Boule, 596 U.S. 482, 486 (2022); see also Hernandez, 589 U.S. at 102. Reflecting on Bivens actions, the Supreme Court has explained that Bivens
was decided at a time where, “as a routine matter with respect
Hernandez claims that his “case is distinguishable from Egbert” because “when Causey shot Plaintiff herein, he was actively participating as a law enforcement officer in a purely local law enforcement operation” while ”Egbert was performing his duties as a Border Patrol officer to secure the border.” He claims
The Supreme Court has “framed the inquiry as proceeding in two steps.” Egbert, 596 U.S. at 492. First, we must determine whether Hernandez‘s claim
presents a new Bivens context—i.e., is it meaningfully different from the three cases in which the Court has implied a damages action.” Id. (cleaned up). The Supreme Court has previously detailed “differences that are meaningful enough to make a given context a new one“: “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Abbasi, 582 U.S. at 139–40. The Court‘s “understanding of a ‘new context’ is broad.” Hernandez, 589 U.S. at 102. Second, if the claim implicates a new context, “a Bivens remedy is unavailable if there are special factors indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 492 (cleaned up). Although the “Court has not defined the phrase ‘special factors counselling hesitation,‘” it has explained “that the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Abbasi, 582 U.S. at 136. And the Court‘s recent decision in Egbert makes clear that a Bivens action should not proceed where “there is any rational reason (even one) to think that Congress is better suited” to make that determination. Egbert, 596 U.S. at 496.
In applying the Supreme Court‘s precedent disfavoring Bivens actions, we have limited Bivens claims to three narrow circumstances:
- manacling the plaintiff in front of his family in his home and strip-searching him in violation of the Fourth Amendment, see Bivens, 403 U.S. at 389–90, 91 S.Ct. 1999;
- discrimination on the basis of sex by a congressman against a staff person in violation of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); and
- failure to provide medical attention to an asthmatic prisoner in federal custody in violation of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020). Outside of these three narrowly defined categories, “[v]irtually everything else is a ‘new context.‘” Id.
Hernandez seems to argue that his claim falls within the first, original Bivens context. In Bivens, the plaintiff alleged that federal agents from the Federal Bureau of Narcotics violated his Fourth Amendment rights with an unlawful search—searching his home without a warrant or probable cause—and excessive force—handcuffing him in front of his family. Bivens, 403 U.S. at 389. Here, both the type of defendant and type of unconstitutional conduct differ from Bivens.
Hernandez brings his claim against an ICE agent. The Court in Egbert held that “the Judiciary is comparatively ill suited to decide whether a damages remedy against any Border Patrol agent is appropriate.” Egbert, 596 U.S. at 495. Unlike the Federal Bureau of Narcotics, which falls under the Department of the Treasury, both ICE and Border Patrol fall under the Department of Homeland Security—a “new category of defendants.” See Abbasi, 582 U.S. at 135 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). Although this circuit has not reached the question of whether to apply Bivens to ICE agents, other circuits have held that ICE agents are new defendants
for the purposes of Bivens. See Alvarez v. U.S. Immigr. & Customs Enf‘t, 818 F.3d 1194 (11th Cir. 2016) (no Bivens remedy in immigration context); Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019); Barry v. Anderson, No. 22-3098, 2023 WL 8449246 (3d Cir. Dec. 6, 2023); see also De La Paz v. Coy, 786 F.3d 367 (5th Cir. 2015) (declining to extend Bivens to CBP agents for illegal stops and arrests).
In addition, the circumstances of the alleged constitutional violations in this case are “meaningfully different” than those in Bivens. While Bivens‘s home was searched without a warrant, Hernandez was legally stopped for a traffic violation. Bivens claimed there was no probable cause to detain him; Hernandez claims Causey‘s use of force in pursuing Hernandez was unconstitutionally excessive. We have recognized in the context of Bivens claims that “‘[j]udicial guidance’ differs across the various kinds of Fourth Amendment
In Egbert, the Supreme Court noted that “a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the
Executive to provide, ‘an alternative remedial structure.‘” Egbert, 596 U.S. at 493 (quoting Abbasi, 582 U.S. at 137). Alternative remedies existed for the plaintiff in Egbert: under
Finally, Hernandez points to the FTCA‘s waiver of sovereign immunity for certain tort suits. He argues that because the Westfall Act modified the FTCA to create an exception to the FTCA‘s exclusivity provision for “suits against federal employees for constitutional violations,” this is akin to Congressional authorization for his Bivens claim. But this is a misreading of the statute. The Supreme Court has explained that the FTCA “is not a license to create a new Bivens remedy in a context we have never before addressed” but instead “left Bivens where it found it.” Hernandez, 589 U.S. at 111 n.9.
Hernandez‘s claim does indeed present a new context for Bivens—it implicates new defendants, presents a different basis for a Fourth Amendment violation, and has an alternative remedial structure provided by Congress. The district court properly dismissed the Bivens claim against Causey.
IV.
Hernandez also appeals the district court‘s dismissal of his
A.
In general, “[a] party who inadequately briefs an issue is considered to have abandoned the claim.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994); see Rollins v. Home Depot USA, 8 F.4th 393, 397–98 (5th Cir. 2021). “To be adequate, a brief must ‘address the district court‘s analysis and explain how it erred.‘” Sec. & Exch. Comm‘n v. Hallam, 42 F.4th 316, 327 (5th Cir. 2022) (quoting Rollins, 8 F.4th at 397 n.1); see Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 751 (5th Cir. 2023) (the appellant should “attempt to rebut [the] judgment“). Where a party‘s “opening brief barely ‘addresse[s] the district court‘s analysis’ and wholly neglect[s] to ‘explain how it erred,‘” Smith, etc. v. Sch. Bd. of Concordia Par., 88 F.4th 588, 594 (5th Cir. 2023) (quoting Russell, 59 F.4th at 751), the party forfeits that argument.
Hernandez‘s opening brief discussed only “the constitutional right to be free from an unreasonable seizure by the use of excessive force“—that is, the claim arising from the shooting. He did not address the district court‘s finding that there were “no allegations that Hernandez was improperly detained pending the arrival of ICE agents.” Because Hernandez did not explain how the district court‘s detention-as-seizure analysis erred, his claim is forfeited, if not relinquished. Even if the claim was not forfeited or relinquished, his unlawful detention-as-seizure claim would still fail for the reasons below—Hernandez did not allege that Causey acted under color of state law.
B.
Section 1983 applies “only when ‘the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority.‘” Lindke v. Freed, 601 U.S. 187, 198 (2024) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)). “[U]nder the ‘joint action test‘, private actors will be considered state actors where they are ‘willful participant[s] in joint action with the State or its agents.‘” Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005) (emphasis added) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). Hernandez challenges the district court‘s dismissal of his excessive-force claim from the shooting under
“[W]hen federal officials conspire or act jointly with state officials to deny constitutional rights, ‘the state officials provide the requisite state action to make the entire conspiracy actionable under section 1983.‘” Knights of Ku Klux Klan, Realm of La. v. E. Baton Rouge Par. Sch. Bd., 735 F.2d 895, 900 (5th Cir. 1984)
Cir. 1979), rev‘d in part on other grounds, 446 U.S. 754 (1980)). Hernandez points to Knights to argue that so long as Causey “willful[ly] participat[ed] . . . in a joint activity with local police,” Causey acted under the color of state law. But in Knights, the acting authority responsible for the constitutional deprivation was a local school board. “Whether the Board was willing to risk loss of federal funds to allow the Klan to hold their meeting . . . was a decision made under color of state law.” Knights, 735 F.2d at 900. Hernandez cites other cases applying the joint-action test, but both similarly involve private actors working with state actors to deprive a plaintiff of their constitutional rights—and in both, the court still found the private actor did not act under color of state law. See Earnest v. Lowentritt, 690 F.2d 1198, 1226 (5th Cir. 1982); Phillips v. Vandygriff, 711 F.2d 1217 (5th Cir. 1983).4
This case law aligns with Lindke‘s emphasis that “state action exists only when” the constitutional deprivation “ha[s] its source in state authority.” Lindke, 601 U.S. at 198 (quoting Lugar, 457 U.S. at 939).5 As cases cited
by Hernandez confirm, a federal officer acting under his agency‘s authority but assisting a state officer generally acts under color of federal law. See Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 870 n.8 (10th Cir. 2016) (recognizing a “presumption that where federal and state actors come together, they are acting pursuant to supreme [federal] law.“); Case v. Milewski, 327 F.3d 564, 567-68 (7th Cir. 2003) (“Case‘s argument that the [federal] defendants[] ceased to be operating under color of federal law once they left the federally owned [property] is without merit,” even when the federal officers cited Case for state crimes); Cabrera v. Martin, 973 F.2d 735, 743 (9th Cir. 1992) (“We have not found a single precedent which would support a holding that a federal agency acting under its own guidelines could be considered to have acted ‘under color of state law’ merely because it was induced by the actions of a state actor ....“).
Even if we were to apply Hernandez‘s proposed “joint action test,” which is applicable to private actors not federal actors, to determine ICE Agent Causey‘s liability,
for guidance, the Supreme Court concluded that it did. This analysis does not speak to the availability of a
unpublished and contradicts prior case law. But our older, published case law actually supports the standard articulated in Pikaluk—for example, we looked for “evidence to establish a conspiracy” in Knights, 735 F.2d at 900, and affirmed a district court‘s dismissal of a
Hernandez argues that we did not explicitly search for a conspiracy in the more recent private-actor case Cherry Knoll, L.L.C. v. Jones, 922 F.3d 309 (5th Cir. 2019). But the issue in Cherry Knoll was whether the pleadings were sufficient to state a claim that a private actor was a “willful participant in joint action” with state actors in the complained-of deprivation. Id. at 319-20. The district court “determined that . . . [the private actor] should be dismissed because it was not part of a conspiracy.” Id. at 316. But we found that several specific allegations in the pleadings, including the fact that the private actor “was hired by the City to handle all aspects of the City‘s acquisition of property from the various landowners affected,” combined with a long history of interactions between the private and state actors, were sufficient to state a claim. Id. at 319–20. Our decision in Cherry Knoll reflects the requirement that a plaintiff must plead some type of agreement to pursue a
Applying
officials.“); Strickland ex rel. Strickland v. Shalala, 123 F.3d 863, 868 (6th Cir. 1997) (“Without proof of . . . a conspiracy, the federal officials cannot be found to have acted under color of state law.” (cleaned up)); Olson v. Norman, 830 F.2d 811, 821 (8th Cir. 1987) (“Where federal officials conspire with state officials . . . they may be held liable” under
Hernandez points to his allegation that “there was a pretextual request for translation assistance” and argues this is sufficient to allege such an agreement. But his claims are conclusory. His proposed amended complaint states that “Causey[]
[N]owhere in his proposed fourth amended complaint does Hernandez allege any facts that Causey came to an agreement or meeting of the minds with Laurel police officers to seize Hernandez—much less to shoot him. In fact, each allegation concerning the shooting focuses solely on Causey‘s conduct, which gives rise to the inference that the decision to shoot Hernandez was Causey‘s decision alone, not the result of some prior agreement.
Federal officers who are called in to assist a state officer can be liable under
* * *
For the foregoing reasons, we AFFIRM the district court‘s dismissal of both the Bivens and
JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:
On July 20, 2016, Officer Driskell of the Laurel Police Department pulled over two vehicles, one driven by Plaintiff-Appellant Gabino Ramos Hernandez and another driven by his brother, for routine state law traffic violations in Laurel, Mississippi. Requiring “translation services” for the second time that same day, Officer Driskell called federal U.S. Immigration and Customs Enforcement (“ICE“) Agents to the scene.
When the ICE van transporting the de facto translators arrived, Hernandez—who was not detained by Officer Driskell (only his brother was)—left the scene by foot in a hurry. Officer Driskell then instructed his translator, ICE Agent McGhee, that Hernandez had “go[ne] down the block! He‘s running south!” McGhee, in turn, instructed ICE Agent Causey, another potential translator, to pursue Hernandez. Causey complied, chased after Hernandez, and then seized Hernandez by shooting him in the arm, which “obliterat[ed] part of the radius in [his] forearm.” Hernandez filed suit against Causey, bringing a Bivens claim1 and a Fourth Amendment excessive
I agree with the majority that Hernandez‘s Bivens claim is foreclosed by the Supreme Court‘s decision in Egbert v. Boule, 596 U.S. 482 (2022). Ante, at 6-11 (majority opinion). However, and with great respect for my esteemed colleagues, I would find that Hernandez has pleaded a
to have alleged a conspiracy between the Laurel Police and ICE officers to seize Hernandez. Ante, at 15-18 (majority opinion mistakenly imposing that overly exacting standard). Instead, when federal officials either conspire or act jointly with state officials to deny constitutional rights, the state officials provide the requisite state action to support
Because I would reverse the district court‘s dismissal of Hernandez‘s
* * *
Section 1983 authorizes a claim for relief only against persons who acted under color of state law. See
Contrary to the majority‘s view, I read Knights of Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Board, 735 F.2d 895 (5th Cir. 1984), to apply the so-called joint action test to federal officers. Ante, at 13–
14. There, we held “when federal officials conspire or act jointly with state officials to deny constitutional rights, ‘the state officials provide the requisite state action‘” for purposes of
Furthermore, I respectfully disagree with the majority‘s alternative holding that the joint action test itself requires evidence of a conspiracy, and I find the majority‘s reliance on an unpublished Fifth Circuit opinion unpersuasive. Ante, at 15–16. Specifically, the majority adverts to Pikaluk v. Horseshoe Ent., L.P., 810 F. App‘x 243 (5th Cir. 2020) (unpublished), and says “[e]ven if the joint action test does apply to federal actors, to satisfy that test, ‘a plaintiff must plead “facts showing an agreement or meeting of the minds between the state actor and the private actor to engage in a conspiracy to deprive the plaintiff of a constitutional right, and that the private actor was a willing participant in joint activity with the state or its agents.“‘” Ante, at 15 (quoting Pikaluk, 810 F. App‘x at 247) (emphasis added). While that is what Pikaluk states, I believe it misstates the standard.
Notably, the panel in Pikaluk cited to a district court‘s opinion as support that the joint action test requires a conspiracy. 810 F. App‘x at 247 (citing Polacek v. Kemper Cnty., 739 F. Supp. 2d 948, 952 (S.D. Miss. 2010)). The district court‘s opinion in Polacek, however, cites to Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989) (emphasis added), a precedential opinion where our court held “in order to find a private citizen liable under section 1983, the plaintiff must allege and prove that the citizen conspired with or acted in concert with state actors.” Mylett‘s recitation of the law jibes with other Fifth Circuit and Supreme Court precedents, which hold “under the ‘joint action test,’ private actors will be considered state actors where they are [merely] ‘willful participant[s] in joint action with the State or its agents.‘” Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)); see also Cherry Knoll, L.L.C. v. Jones, 922 F.3d 309, 319 (5th Cir. 2019) (“Under Supreme Court precedent, to act under color of state law for
omitted)); accord O‘Handley v. Weber, 62 F.4th 1145, 1159 (9th Cir. 2023), cert. denied, 144 S.Ct. 2715 (mem.) (2024) (explaining how the joint action test can be satisfied either by showing a conspiracy or by showing willful participation in joint action). Accordingly, I respectfully disagree that the joint action test requires allegations of a conspiracy. And to the extent a non-binding opinion of our court—Pikaluk, 810 F. App‘x at 247—holds otherwise, I would clarify that the correct standard is found in Cornish, 402 F.3d at 550 (quoting Dennis, 449 U.S. at 27) and Mylett, 879 F.2d at 1275.
Applying the joint action test derived from binding precedents to the facts of this case, I would find that Hernandez plausibly alleged that translator Causey acted under color of state law when he seized Hernandez with a gunshot/excessive force. Neither the majority, the district court, nor the Government point to any federal law or regulation that Causey acted pursuant to when he came to the scene as Officer Driskell‘s translator, when he began to chase after Hernandez who was leaving a state law traffic investigation, or when he eventually shot Hernandez to seize him. To the contrary, the Government disavows that the ICE Agents were on the scene to perform immigration operations—they were only there as the Laurel Police Department‘s translators to accomplish the state‘s purpose of enforcing its traffic laws. Stypmann v. City & Cnty. of San Francisco, 557 F.3d 1338 (9th Cir. 1977) (holding that a towing company acting at the behest of a police officer to accomplish the state‘s purpose of enforcing its traffic laws acted under color of state law) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974))). Further still, according to Officer Driskell, the ICE translators were an “additional tool in his toolbox” and he had relied on them in the past for translation assistance when stopping Hispanic people. The level of interdependence manifested in this case by Laurel Police Department Officer Driskell, acting pursuant to state law, instructing ICE Agents to partake in a local police matter as translators and then to pursue and seize
Hernandez. Causey followed that instruction and seized Hernandez by shooting him in the arm, in contravention of the Fourth Amendment‘s guarantee that individuals be free from an unreasonable government seizure by the use of excessive force. Knights, 735 F.2d at 900 (holding federal officials act under color of state law when the federal government “act[s] jointly with state officials to deny constitutional rights“).
Viewing the alleged facts in the light most favorable to Hernandez leads me to conclude that Causey was a “willful participant in joint action with the State or its agents.” Dennis, 449 U.S. at 27. I would reverse the district court‘s dismissal of Hernandez‘s