Degenhardt v. Bintliff

Case: 24-40034        Document: 49-1       Page: 1     Date Filed: 09/24/2024




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

                                        FILED
                              ____________
                                                                   September 24, 2024
                               No. 24-40034                           Lyle W. Cayce
                              ____________                                 Clerk

Marc Degenhardt; Augustus Degenhardt,

                                                         Plaintiffs—Appellants,

                                     versus

Phillip Bintliff; Armando Cisneros,

                                         Defendants—Appellees.
                ______________________________

                Appeal from the United States District Court
                    for the Southern District of Texas
                          USDC No. 2:23-CV-239
                ______________________________

Before Clement, Graves, and Ramirez, Circuit Judges.
Edith Brown Clement, Circuit Judge:
       Marc and Augustus Degenhardt allege that Corpus Christi Police
Lieutenant Phillip Bintliff unlawfully initiated a traffic stop and that Bintliff
and Officer Armando Cisneros unlawfully searched and towed their vehicle
and retaliated against them for engaging in protected speech. The district
court dismissed the suit. The facts alleged in the complaint indicate that the
Degenhardts have stated a claim for Bintliff’s violation of their Fourth
Amendment rights by initiating the traffic stop without reasonable suspicion.
But the facts suggest that the officers had probable cause to search the
vehicle. With respect to the Degenhardts’ remaining claims, Bintliff and
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                                     No. 24-40034


Cisneros asserted a valid qualified-immunity defense. Thus, we AFFIRM
in part, REVERSE in part, and REMAND for further proceedings.
                                           I.
        We begin with the allegations of the operative complaint, 1 which at the
dismissal stage we accept as true and construe in the light most favorable to
the plaintiffs. Crane v. City of Arlington, 

 (5th Cir. 2022).
        On March 20, 2022, Marc Degenhardt, age 18, was driving his
parents’ black Dodge Challenger. His brother Augustus, age 20, rode as a
passenger. The Challenger was stopped at a traffic light waiting to turn left
onto a highway; a blue Dodge Charger was also waiting to turn left in the next
lane. The Degenhardts allege that when the light turned green, both vehicles
turned left and merged into a single lane.
        Bintliff observed the cars and pulled the Challenger over. Although
the Degenhardts protested that they did nothing wrong, Bintliff, incensed,
allegedly accused Marc of “burn[ing] out” at the intersection and “peeling
out from the intersection to race the other vehicle that was stopped at the
light” right in front of Bintliff’s patrol car. Bintliff explained that he had
heard engine revving sounds and that he had seen the Challenger spin its
tires. Cisneros arrived at the scene shortly thereafter to assist.
        The Degenhardts allege that during the stop, Bintliff shined a
flashlight into the vehicle and observed an opened cardboard box containing
White Claw Hard Seltzers. After learning that the brothers were under 21,
the officers ordered the Degenhardts out of the car. Cisneros then conducted


        _____________________
        1
          The Degenhardts amended their complaint after Bintliff and Cisneros raised a
qualified-immunity defense. For ease of reference, we refer to the operative complaint as
the “complaint.”




                                           2
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                                      No. 24-40034


a Terry frisk of Marc, discovering a vape pen. 2 Throughout the stop, Bintliff
and Cisneros repeatedly expressed frustration with what they perceived as
the brothers’ defiant attitudes, noting that the Degenhardts were smirking
and laughing throughout the encounter. The complaint alleges that the
officers repeatedly threatened to arrest the Degenhardts if they failed to
cooperate.
        Next, the Degenhardts allege that Cisneros shouted at Bintliff that the
officers should “take” the car in retaliation for the perceived disrespect of
the officers. According to the complaint, Cisneros told Bintliff that they
should “impound [the vehicle] because [the Degenhardts] were laughing”
and “smirking” throughout the encounter. The officers then impounded the
vehicle, charged both Marc and Augustus with possessing alcohol as minors,
and issued Marc a warning for reckless driving. The officers did not arrest
the Degenhardts; rather, they dropped them off at a nearby convenience
store. The charges were later dropped. 3
        The Degenhardts sued under 

, asserting four claims.
The Degenhardts allege that (1) Bintliff unlawfully initiated the traffic stop
and that both officers (2) unlawfully searched the car, (3) unlawfully seized
the car, and (4) retaliated against the brothers for engaging in protected free
speech. Bintliff and Cisneros moved to dismiss, arguing that the Degenhardts
had not stated actionable claims and could not overcome qualified immunity.
The district court granted the motion. The Degenhardts timely appealed.


        _____________________
        2
          At the time of the stop, Texas law made it illegal for an individual under the age
of 21 to possess an e-cigarette. See Tex. Health & Safety Code § 161.252(a).
        3
        The Degenhardts allege that the charges were dropped because the prosecutor
determined that the officers lacked probable cause. The complaint provides no additional
detail.




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                                  No. 24-40034


                                       II.
       We review dismissals under Rule 12(b)(6) de novo. Allen v. Hays, 

, 743 (5th Cir. 2023). To survive a motion to dismiss, the complaint
must contain “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 

(2009) (quoting Bell Atl. Corp. v. Twombly, 

 (2007)). While
we accept all well-pleaded facts as true, we do not accept as true
“[c]onclusory allegations, unwarranted factual inferences, or legal
conclusions.” Hodge v. Engleman, 

 (5th Cir. 2024)
(quotation marks and citation omitted).
       To state a claim under 

, plaintiffs must allege that a
defendant deprived them of a federal right and that the defendant acted under
color of state or territorial law. Arnold v. Williams, 

 (5th Cir.
2020). Qualified immunity, however, “adds a wrinkle.” 

 “The doctrine of
qualified immunity protects government officials from civil damages liability
when their actions could reasonably have been believed to be legal.” Morgan
v. Swanson, 

 (5th Cir. 2011).
       After an officer pleads qualified immunity, a plaintiff “must plead
specific facts that both allow the court to draw the reasonable inference that
the defendant is liable for the harm he has alleged and that defeat a qualified
immunity defense with equal specificity.” Arnold, 

. “The
crucial question is whether the complaint pleads facts that, if true, would
permit the inference that Defendants are liable under § 1983 and would
overcome their qualified immunity defense.” Terwilliger v. Reyna, 

, 280 (5th Cir. 2021) (cleaned up).
       There is a two-part test to overcoming qualified immunity. “First, we
ask whether the facts, ‘taken in the light most favorable to the party asserting
the injury . . . show the officer’s conduct violated a federal right.’” Argueta




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                                  No. 24-40034


v. Jaradi, 

 (5th Cir. 2023) (quoting Tolan v. Cotton, 

, 655–56 (2014)). “[S]econd, we ask whether the right in question
was ‘clearly established’ at the time of the alleged violation, such that the
officer was on notice of the unlawfulness of his or her conduct.” 

 (internal
quotation marks omitted).
       “[A] clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Melton v. Phillips, 

 (5th Cir. 2017) (en banc) (internal
quotation marks omitted). This is a “demanding standard.” Vincent v. City
of Sulphur, 

 (5th Cir. 2015).
       The Supreme Court has repeatedly told courts . . . not to define
       clearly established law at a high level of generality. The
       dispositive question is whether the violative nature
       of particular conduct is clearly established. This inquiry must
       be undertaken in light of the specific context of the case, not as
       a broad general proposition.
Guerra v. Castillo, 

 (5th Cir. 2023) (quoting Mullenix v.
Luna, 

, (2015) (internal quotation marks omitted)).
                                      III.
       The Degenhardts pleaded facts sufficient to state a Fourth
Amendment claim that Bintliff lacked a reasonable suspicion to initiate the
traffic stop. However, the Degenhardts failed to allege facts showing that
Bintliff and Cisneros lacked probable cause to search the car. Accordingly,
the Degenhardts have adequately alleged that Bintliff deprived them of their
Fourth Amendment rights with respect to the initial traffic stop but not as to
the search of their car.




                                        5
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                                      No. 24-40034


                                           A.
        First, the traffic stop. The Degenhardts allege that Bintliff initiated
the traffic stop without a reasonable suspicion that a crime had occurred.
“Under Terry [v. Ohio, 

 (1968),] if a law enforcement officer can
point to specific and articulable facts that lead him to reasonably suspect that
a particular person is committing, or is about to commit, a crime, the officer
may briefly detain—that is, ‘seize’—the person to investigate.” United
States v. Hill, 

 (5th Cir. 2014). “Although a mere ‘hunch’
does not create reasonable suspicion, the level of suspicion the standard
requires is considerably less than proof of wrongdoing by a preponderance of
the evidence, and obviously less than is necessary for probable cause.”
Kansas v. Glover, 

 (2020) (internal quotation marks
omitted).
        A reasonable suspicion exists where an officer can “point to specific
and articulable facts [that], taken together with rational inferences from those
facts, reasonably warrant [the seizure].” United States v. Lopez-Moreno, 

 (5th Cir. 2005). Officers are permitted to make
“commonsense judgments and inferences about human behavior.” Glover,
589 U.S. at 380–81 (internal quotation marks omitted).
        The facts alleged in the Degenhardts’ complaint contradict Bintliff’s
basis for initiating the traffic stop, namely, his suspicion that the driver of the
Challenger (Marc Degenhardt) was unlawfully racing the driver of the
Charger and driving recklessly. 4 While Bintliff apparently observed the

        _____________________
        4
         Texas law outlaws “drag rac[ing],” or operating “two or more vehicles from a
point side by side at accelerating speeds in a competitive attempt to outdistance each
other.” Tex. Transp. Code § 545.420(b)(1). It also outlaws “rac[ing]”: “the use of
one or more vehicles in attempt to . . . outgain or outdistance another vehicle or prevent
another vehicle from passing” or “arrive at a given destination ahead of another vehicle.”




                                            6
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                                         No. 24-40034


Challenger “peeling out from the intersection to race the other vehicle,” the
Degenhardts allege that
        [w]hen the light turned green, both vehicles turned left and
        proceeded to travel down TX-361, before smoothly merging
        into one lane. Neither vehicle drove erratically, impeded other
        traffic, or otherwise offered a threat to anyone or anything in
        their surroundings. Neither vehicle moved to outpace the
        other, maintaining the same steady pace. Two cars smoothly
        shared the road.
At the motion-to-dismiss stage, we are required to “accept[] all well-pleaded
facts as true and view[] those facts in the light most favorable to the
plaintiffs.” Anderson v. Valdez, 

 (5th Cir. 2016) (internal
quotation marks omitted). 5 Doing so requires us to credit the Degenhardts’
account of the cars’ smooth departure from the traffic light over Bintliff’s
contention that the Challenger peeled out ahead of the Charger.
        The district court failed to follow this principle of accepting all well-
pleaded facts as true and viewing them in the plaintiff’s favor. Instead, the
district court “indulge[d] all reasonable inferences in favor of Lt. Bintliff’s
reasoning.” The district court noted that “[r]easonable suspicion is
        _____________________

 § 545.420(b)(2). Texas law further prohibits reckless driving, i.e., “driv[ing] a vehicle
in willful or wanton disregard for the safety of persons or property.” Id. § 545.401.
        5
          One relevant exception to this default rule of assuming the truth of the plaintiff’s
allegations in the face of a motion to dismiss is “[i]f an allegation is qualified by the contents
of an exhibit attached to the pleadings, but the exhibit instead contradicts the allegation,
‘the exhibit and not the allegation controls.’” Sligh v. City of Conroe, 

, 298 (5th
Cir. 2023) (quoting U.S. ex rel. Riley v. St. Luke’s Episcopal Hosp., 

 (5th
Cir. 2004)). This exception is relevant to this case because the complaint includes stills
from what appears to be dashcam footage from Bintliff’s perspective. The stills alone,
however, are insufficient to shed meaningful light on the factual allegations described in
this section (III.A.), and, oddly enough, the actual footage is nowhere to be found in the
record. So the exhibit-exception to the default rule of crediting a well-pleaded complaint
does not apply here.




                                                7
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                                      No. 24-40034


evaluated from the point of view of the law enforcement officer, considering
his experience, the totality of the circumstances, and all reasonable
inferences.” But the cases that the district court cited for this proposition do
not arise in the context of a motion to dismiss. See Alabama v. White, 

 (1990); United States v. Rodriguez, 

 (5th Cir. 1988).
This court has explained that the facts forming the basis for reasonable
suspicion “must be viewed in their totality as seen and interpreted by the
officer or agent’s experience.” Rodriguez, 

. That principle
does nothing to change the fact that, in the context of a motion to dismiss,
the court must credit all well-pleaded factual allegations, absent some
exception to that rule.
        Looking at the facts as the Degenhardts present them, and drawing
reasonable inferences in their favor rather than Bintliff’s, the only possible
basis for reasonable suspicion sufficient to justify the traffic stop was the
loudness of the Challenger. As the complaint reflects, Marc admitted that the
Challenger “is very loud; he does not know why, but even the dealership
agreed it is unusually loud.” Reasonable suspicion of any traffic violation
justifies a traffic stop, Lopez-Moreno, 

, and Texas law requires
“a muffler in good working condition that continually operates to prevent
excessive or unusual noise,” TEX. TRANSP. CODE § 547.604(a). But it is
not clear from the allegations whether the noise level of the Challenger was
related to the muffler or some other cause. 6 Taking the allegations of the
complaint as true, there is no clear and articulable fact indicating that the
Degenhardts committed a traffic violation. Thus, assuming the truth of the

        _____________________
        6
           Given the conflicting accounts of the source of the Challenger’s loud noise
(revving the engine versus otherwise), the takeoff from the traffic light (Marc peeling out
versus maintaining a steady speed), and other fact issues, the dashcam footage might clarify
the existing fact disputes on remand.




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                                  No. 24-40034


complaint’s allegations, Bintliff lacked reasonable suspicion, and the
Degenhardts have stated a claim for a violation of their Fourth Amendment
rights as a result of the traffic stop. We therefore reverse the district court’s
grant of the officers’ motion to dismiss on this point and remand for further
proceedings.
                                       B.
       On appeal, Bintliff failed to argue that he is entitled to qualified
immunity as to the traffic-stop claim. Accordingly, Bintliff has forfeited this
argument on appeal. Rollins v. Home Depot USA, 

 (5th Cir.
2021) (“A party forfeits an argument by failing to raise it in the first instance
in the district court—thus raising it for the first time on appeal—or by failing
to adequately brief the argument on appeal.”). We therefore leave the
question of whether Bintliff is entitled to qualified immunity on this point to
the district court on remand.
                                       C.
       Next, the Degenhardts argue that the officers unlawfully searched
their car. They contend that “Bintliff and Cisneros were without reasonable
suspicion, probable cause, consent, warrant, or lawful basis to search their
vehicle by opening the door to [peer] inside.” According to the Degenhardts,
Bintliff and Cisneros lacked a reasonable suspicion that a crime occurred until
after they began searching the car.
       “It is well settled that warrantless searches of automobiles are
permitted by the Fourth Amendment if the officers have probable cause to
believe that the vehicle contains contraband or other evidence of a crime.”
United States v. McSween, 

 (5th Cir. 1995).




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                                       No. 24-40034


        As the complaint itself explains, the alcoholic beverages were in plain
view of the officers before they opened the door of the vehicle. 7 See United
States v. Phillips, 

 (per curiam) (5th Cir. 2008) (holding
that marijuana lying in plain view on dashboard provided probable cause for
warrantless search of vehicle). During the stop, Cisneros
        looked around at the visible areas of [the Degenhardts’] car
        from his position next to the door with his flashlight . . . . During
        his perusal, he noticed an opened cardboard box with cans in it,
        on the floorboard of the back seat behind Plaintiff Augustus’s
        seat. The cans [were of] White Claw Hard Seltzer.
        Thus, as the district court explained, this observation “provide[d]
reasonable suspicion of a crime, given the apparent youth of [the
Degenhardts]. Upon confirming their ages, Defendants had probable cause
to conduct a search of the vehicle.” See Tex. Alco. Bev. Code § 106.05
(criminalizing possession of alcohol by a minor). The district court properly
dismissed the claim for an unreasonable search of the car.
                                            IV.
        The Degenhardts further contend that the officers’ decision to
impound the Challenger amounted to a warrantless seizure. Although Bintliff
and Cisneros failed to articulate a reason to impound the vehicle under the
community caretaker exception, it was not clearly established that



        _____________________
        7
          For avoidance of doubt, the fact that the Degenhardts have plausibly alleged an
unlawful traffic stop does not affect our determination that there is no such plausible
allegation with respect to the search of the car. As alleged, the officers did not search the
vehicle until they had probable cause independent of the basis for the initial stop: they
observed the cardboard box of White Claw Hard Seltzers in plain view in the backseat—an
observation that does not implicate the Fourth Amendment because it does not constitute
a search—and noted the apparent youth of the Degenhardts.




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                                 No. 24-40034


impounding a vehicle when an officer had probable cause to arrest the driver
but nonetheless declined to do so amounted to an unconstitutional seizure.
       Impounding a vehicle qualifies as a seizure subject to a Fourth
Amendment analysis. See United States v. McKinnon, 

, 207–08
(5th Cir. 2012). One exception to the Fourth Amendment’s warrant
requirement is the “community caretaking exception.” 

 Under the
community caretaking exception, police may impound vehicles in
furtherance of “public safety” or “community caretaking functions” such as
removing “disabled or damaged vehicles” and “automobiles [that] violate
parking ordinances . . . jeopardiz[ing] both the public safety and the efficient
movement of vehicular traffic.” South Dakota v. Opperman, 

,
368–69 (1976). “In considering whether this exception applies, our
constitutional analysis hinges upon the reasonableness of the ‘community
caretaker’ impound viewed in the context of the facts and circumstances
encountered by the officer.” McKinnon, 

; see also Trent v.
Wade, 

 (5th Cir. 2015) (“[T]he touchstone of the Fourth
Amendment is reasonableness.”).
       The parties disagree about whether the community caretaker
exception applied here. According to Bintliff and Cisneros, because the
community caretaker exception allows officers to impound vehicles “when
the owner of the vehicle has been arrested while the vehicle is on the public
streets,” Trent, 766 F.3d at 387 n.13, they could impound the vehicle because
the officers had probable cause to effectuate a full custodial arrest of the
Degenhardts for being minors in possession of alcohol. The Degenhardts, in
contrast, argue that because they were not actually arrested and posed no
threat to public safety—pleading that they were properly licensed to drive,
sufficiently insured, unimpaired, and the car was not inoperable or otherwise
a danger to the public—Bintliff and Cisneros were unjustified in impounding
the car.



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                                  No. 24-40034


       We agree with the Degenhardts. The reason that officers can impound
a vehicle under the community caretaker exception after the driver has been
arrested is irrelevant to the reason for which the driver was arrested (i.e., the
probable cause). See Opperman, 

 n.5. When a driver is
arrested, the police need to get the vehicle off the road so that it does not
impede traffic or jeopardize public safety and to protect the vehicle itself. 

at 368–69; McKinnon, 681 F.3d at 208–09 (holding community caretaking
exception applied where vehicle could have become a nuisance, damaged, or
stolen; the driver had no proof of insurance; and the vehicle’s registration
sticker was expired). Indeed, an officer’s decision to impound a vehicle
pursuant to the community caretaker exception must be “bas[ed] [on]
something other than suspicion of evidence of criminal activity.” Colorado v.
Bertine, 

 (1987).
       To be sure, if Bintliff and Cisneros reasonably believed that allowing
the Degenhardts to remain on the road posed a threat to public safety, either
because the officers reasonably believed that the brothers were intoxicated or
were likely to continue driving recklessly, such rationale may have justified
their decision to impound the vehicle under the community caretaker
exception. But, according to the complaint, although Bintliff and Cisneros
repeatedly asked the Degenhardts if they had been drinking, neither officer
stated that they believed the brothers were intoxicated or that they
impounded the Challenger because they believed the Degenhardts were
impaired. And Bintliff and Cisneros do not assert that they impounded the
vehicle because the Degenhardts were intoxicated; only that they had
probable cause to arrest them for possessing alcohol. To the contrary, the
complaint indicates that the officers pointed to the reckless driving warning
as the basis for the impound at the time of the incident. But, again, that’s not
the argument Bintliff and Cisneros have advanced in court. At no point
during these proceedings have the officers asserted that the reckless driving




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                                  No. 24-40034


warning warranted the impound, so any such argument is forfeited. Rollins, 

. We therefore decline to consider whether the reckless driving
warning was a reasonable basis to impound the vehicle under the community
caretaker exception.
         Bintliff and Cisneros simply contend that because they had probable
cause to arrest the Degenhardts for possessing alcohol underage, they were
free to impound the vehicle without a warrant. But given that the officers did
not actually arrest the Degenhardts, probable cause alone was not enough
under the community caretaker exception. Because we conclude that Bintliff
and Cisneros failed to articulate a lawful justification to seize the vehicle, the
Degenhardts have at least stated a claim for a violation of their Fourth
Amendment right on this point. The question, then, is whether such right is
sufficiently established to defeat qualified immunity. See Argueta, 

. We conclude that the answer is “no.”
         The Degenhardts fail to show that it is clearly established that
impounding a vehicle when the available drivers were cited for a crime for
which they could be arrested but were not amounted to an unconstitutional
seizure. The Degenhardts cite only to caselaw standing for the proposition
that an unreasonable seizure is generally unlawful. Such precedent is too
general for purposes of qualified immunity. See Ashcroft v. al-Kidd, 

, 742 (“The general proposition . . . that an unreasonable search or seizure
violates the Fourth Amendment is of little help in determining whether the
violative nature of particular conduct is clearly established.”). Bintliff and
Cisneros are therefore entitled to qualified immunity with respect to this
claim.
                                       V.
         Lastly, we address the Degenhardts’ First Amendment claim. The
Degenhardts allege that Bintliff and Cisneros seized them and their vehicle




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                                      No. 24-40034


and initiated charges against them in retaliation for exercising their First
Amendment rights, namely, smirking and laughing during the encounter. See
City of Houston v. Hill, 

 (1987).
        “[T]he law is settled that as a general matter the First Amendment
prohibits government officials from subjecting an individual to retaliatory
actions . . . for speaking out.” Hartman v. Moore, 

 (2006).
To prevail on a First Amendment retaliation claim, a plaintiff must show that
he was engaged in constitutionally protected activity, the officer’s actions
injured him, and “the officers’ adverse actions were substantially motivated
against Plaintiff’s exercise of constitutionally protected conduct.” Alexander
v. City of Round Rock, 

 (5th Cir. 2017). 8
        “To ensure that officers may go about their work without undue
apprehension of being sued, we generally review their conduct under
objective standards of reasonableness.” Nieves v. Bartlett, 

, 403
(2019). A retaliation claim is only available “when non-retaliatory grounds
are in fact insufficient to provoke the adverse consequences.” Allen v.
Cisneros, 

 (5th Cir. 2016) (per curiam). “It is not enough to
show that an official acted with a retaliatory motive and that the plaintiff was
injured—the motive must cause the injury.” Nieves, 587 U.S. at 398. It must
be a “‘but-for’ cause, meaning that the adverse action against the plaintiff
would not have been taken absent the retaliatory motive.” Id. at 399.
        Thus, in the context of retaliatory arrest or prosecution, to prove
causation, a plaintiff generally must show that the officers lacked probable
cause to make the arrest. Gonzalez v. Trevino, 

, 1665 (2024)
        _____________________
        8
          Bintliff and Cisneros do not contest that the Degenhardts have engaged in
protected speech, i.e., smirking and laughing, nor do they contest that the Degenhardts
have suffered any injury. The only element in dispute is whether the officers’ actions were
motivated by the Degenhardts’ exercise of constitutionally protected conduct.




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                                  No. 24-40034


(per curiam). We have likewise held that if an officer has a reasonable
suspicion to initiate a seizure, “the objectives of law enforcement take
primacy over the citizen’s right to avoid retaliation.” Allen, 

(internal quotation marks omitted); see also Nieves, 587 U.S. at 398. A plaintiff
may also prove causation if he or she can “produce[] objective evidence that
he was arrested when otherwise similarly situated individuals not engaged in
the same sort of protected speech had not been.” Trevino, 144 S. Ct. at 1666.
                                       A.
       For the reasons set forth above, Bintliff and Cisneros established a
lawful basis to search the car and to cite the Degenhardts for possessing
alcohol as minors and driving recklessly. Additionally, the Degenhardts have
not pleaded examples of similarly situated comparators who were treated
differently. See Nieves, 587 U.S. at 407. Thus, the Degenhardts have failed to
plead facts sufficient to show that the officers’ actions were substantially
motivated by the Degenhardts’ expressions.
       Bintliff and Cisneros had a lawful basis to search the Degenhardts’ car.
See McSween, 

; Phillips, 

. The officers’
discovery of the White Claws and vape pen—both of which were unlawful
for the Degenhardts to possess—provided probable cause sufficient to
extend the detention. United States v. Andres, 

 (5th Cir.
2013) (“If the officer develops reasonable suspicion of additional criminal
activity during his investigation of the circumstances that originally caused
the stop, he may further detain [the] occupants [of the vehicle] for a
reasonable time while appropriately attempting to dispel this reasonable
suspicion.” (alteration in original)). The Degenhardts have likewise failed to
plead comparator evidence. Accordingly, they have not pleaded sufficient
facts to show that Bintliff’s and Cisneros’s non-retaliatory grounds for the
seizures were insufficient to provoke their actions.




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                                  No. 24-40034


                                       B.
       That leaves the officers’ decision to impound the car. On this point,
the Degenhardts have failed to overcome the officers’ qualified-immunity
defense.
       The Degenhardts contend that Bintliff and Cisneros had no non-
retaliatory grounds sufficient to provoke their decision to impound the
Challenger. Nieves, 587 U.S. at 398. The Degenhardts allege that Cisneros
offered a retaliatory motive, telling Bintliff that they should impound the
vehicle “because [the Degenhardts] were laughing” and “smirking,” and
shouted at Bintliff that they should “take” the car. Specifically, the
complaint alleges that Cisneros told Bintliff: “I’ll write up the reckless
driving . . . and we’ll impound [the vehicle] because they were laughing. As
soon as you started walking away, they started laughing.” After Bintliff
allegedly asked if that were true, Cisneros replied, “Yeah. He was smirking
the whole time you were talking to him.” The Degenhardts assert that the
officers’ decision to impound the car was motivated by a desire to “t[each]
[the Degenhardts] a lesson” for disrespecting police officers.
       As discussed above, Bintliff and Cisneros have failed to articulate a
lawful basis to seize the Challenger. The question, then, is whether the
probable cause to arrest was nonetheless a non-retaliatory ground sufficient
to provoke the officers’ decision to impound the vehicle. It was not, but
Bintliff and Cisneros are entitled to a qualified-immunity defense because
existing precedent had not “placed the . . . constitutional question beyond
debate.” Stanton v. Sims, 

 (2013).
       Most of the caselaw on retaliatory searches and seizures concerns
arrests and prosecutions, not retaliatory seizures of property. Indeed, it was
only recently that the Supreme Court clarified that “probable cause to make
an arrest defeats a claim that the arrest was in retaliation for speech protected




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                                   No. 24-40034


by the First Amendment.” Nieves, 587 U.S. at 397–98. Thus, it is not
surprising that the Degenhardts only point to caselaw that generally stands
for the proposition that an arrest unsupported by probable cause violates the
First Amendment. See Davidson v. City of Stafford, 

 (5th
Cir. 2017). Although our court has indicated that reasonable suspicion is
generally also sufficient to defeat retaliatory seizure claims where only a
reasonable suspicion is required to lawfully initiate a seizure, Allen, 

, we had not clearly addressed whether probable cause to initiate an
arrest (i.e., a seizure of a person) is a sufficient reason to seize property in that
person’s possession. For the reasons set forth in Section IV, supra, it is not.
To defeat a retaliatory seizure claim, the officer must, at the very least, have
had a lawful justification to seize the property. See Nieves, 587 U.S. at 407;
Allen, 

. Nonetheless, Bintliff and Cisneros are entitled to
qualified immunity. See Reichle v. Howards, 

 (2012)
(granting qualified immunity when it was unclear whether probable cause
supporting arrest was sufficient to defeat retaliatory arrest claim).
                                        VI.
       Assuming the truth of the well-pleaded facts in the complaint, the
Degenhardts have stated a claim for a violation of their Fourth Amendment
rights based on Bintliff’s decision to initiate the traffic stop. The district court
improperly dismissed this claim. But the officers’ decisions to search the
Degenhardts’ vehicle, write them up them for reckless driving, and charge
them with possessing alcohol as minors were lawful and cannot support a
§ 1983 claim. And the Degenhardts’ claims regarding the officers’ decision
to impound the car cannot overcome qualified immunity. We AFFIRM in
part, REVERSE in part, and REMAND for further proceedings.




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                                    24-40034


James E. Graves, Jr., Circuit Judge, concurring in part
and dissenting in part:
       I agree with most of the majority’s opinion. But I disagree that Bintliff
and Cisneros are entitled to qualified immunity with respect to the First
Amendment retaliation claim involving the impoundment of the
Degenhardts’ vehicle. Accordingly, I respectfully dissent from that portion
of the opinion.
       The Constitution prohibits “adverse government action against an
individual because of her exercise of First Amendment freedoms.” Izen v.
Catalina, 

 (5th Cir. 2005) (quoting Colson v. Grohman, 

 (5th Cir. 1999)). Public servants are well apprised that they
cannot “subject[] an individual to retaliatory actions . . . for speaking out.”
Hartman v. Moore, 

 (2006). These foundational principles
have been consistently applied and reinforced in particularized policing
contexts. For example, individuals may “use obscene or opprobrious
language” toward law enforcement, Lewis v. City of New Orleans, 

 (1974), or “threat[en] to sue a police officer,” Turner v. Lieutenant
Driver, 

 (5th Cir. 2017), without fear of retaliation.
       Here, the Degenhardts have alleged that Bintliff and Cisneros
unlawfully impounded their vehicle in retaliation for “laughing,”
“smirking,” and general “disrespect of the officers.” Ante at 3. It is well
established that the First Amendment protects a “significant amount of
verbal criticism and challenge” toward officers. City of Houston v. Hill, 

 (1987). It is also well established that law enforcement may not
punish individuals solely for “words or conduct that offend.” 

. And
while City of Houston is set in the context of a retaliatory arrest, it follows a
fortiori that annoying conduct or offensive words trigger similar protections
in the context of a retaliatory seizure. This is a clear circumstance where “a




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                                    24-40034


general constitutional rule already identified in the decisional law [applies]
with obvious clarity to the specific conduct in question.” Hope v. Pelzer, 

 (2002) (citation omitted); see also Anderson v. Creighton, 

 (1987) (requiring only that “[t]he contours of the right [] be
sufficiently clear,” not that “the very action in question have previously been
held unlawful”).
       The majority recognizes that the Degenhardts have adequately alleged
a First Amendment retaliation claim, and correctly concludes that Bintliff
and Cisneros “failed to articulate a lawful basis to seize” the brothers’
vehicle and lacked a “non-retaliatory ground sufficient” to justify its
impoundment. Ante at 16. But it then charts a different course, concluding
that recent caselaw—specifically, Allen v. Cisneros, 

 (5th Cir.
2016) and Nieves v. Bartlett, 

 (2019)—cast sufficient uncertainty
over whether the seizure of personal property is permissible when probable
cause to arrest an individual is present.
       To be sure, uncertainty in the state of the law can affect the qualified
immunity analysis. Reichle v. Howards, 

 (2012). But neither
Nieves nor Allen has any bearing on the unconstitutional nature of Bintliff and
Cisneros’s alleged retaliation. Tellingly, neither case offers any insight
toward the general context we are confronted with: the seizure of personal
property when probable cause is present. Nieves provides that probable cause
for an arrest defeats a claim that the arrest was effectuated in retaliation for
protected conduct. 

. Allen allows an officer with reasonable
suspicion of criminal activity to briefly detain an individual, even if the
detainment appears to have been motivated by the individual’s First
Amendment activities. 815 F.3d at 244–45. The logic underpinning these
holdings is straightforward: if there exists an objective justification to detain
or arrest an individual, that justification is sufficient to defeat an allegation
that the individual’s seizure was retaliatory.



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                                   24-40034


       But those cases do not suggest that when a lawful justification for
seizing an individual is present, a lawful justification for seizing that
individual’s personal property simultaneously exists. Nor is that a logical
conclusion to reach—especially in the instant case, where the only cognizable
justification for seizing the Degenhardts’ vehicle was an unconstitutional
one: to punish the brothers for their disrespectful speech. See Ante at 10–13
(rejecting the officers’ argument that the community caretaker exception
justified impoundment). That justification is plainly unconstitutional, and no
reasonable officer would find it permissible. Rivas-Villegas v. Cortesluna, 

 (2021); see also Taylor v. Riojas, 

, 8–9 (2020) (denying
qualified immunity where “no reasonable . . . officer could have concluded”
his actions were legal).
       Though not dispositive to the above analysis, it is also striking that the
unlawful acts that provided probable cause to arrest the Degenhardts—
underage possession of alcohol and illegal possession of a vaping device—
have scant relation to the property seized—the brothers’ Dodge Challenger.
This disconnect makes the vehicle’s seizure all the more egregious, the
retaliatory nature of the officers’ alleged actions all the more apparent, and
the illegality of the impoundment all the more plain. Simply stated, while
probable cause allows police to arrest an individual, it does not, on its own,
provide free rein to seize that individual’s personal property.
       At this early stage, the Degenhardts have adequately stated a claim for
a violation of their First Amendment rights as a result of their vehicle’s
seizure and impoundment. The recent caselaw that the majority identifies
does not cast any uncertainty over the unconstitutionality of the officers’
alleged actions. Accordingly, I respectfully dissent from that portion of the
majority’s opinion.




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