Page 50 - TPA Journal January - February 2019

other articulation of adequate suspicion. violated right was not clearly established under
A different set of facts is presented where an our law at the time of the searches.
“examining physician conduct[s] a [search] with-
We cannot “define clearly established law at a
out a request to do so by the customs agent; and
high level of generality.” This inquiry “must be
neither the physician nor the [law enforcement]
undertaken in light of the specific context of the
agents . . . ha[ve] real suspicion [the individual]
case, not as a broad general proposition.” The
[is] concealing narcotics.”
Supreme Court does “not require a case directly
4 We do not resolve a related but distinct question: on point, but existing precedent must have placed
under what circumstances may a medical profes- the statutory or constitutional question beyond
sional be held liable for the manner in which a debate.” “It is the plaintiff’s burden to find a case
particular search is conducted. Under Supreme in [her] favor that does not define the law at a
Court caselaw, even if a particular type of com- ‘high level of generality.’”
pelled bodily intrusion is justified by the circum- The district court did not err in granting the
stances, it may still violate the Fourth Amendment Doctors and Nurses qualified immunity.
if performed in an “improper manner.” To deter-
mine whether a particular procedure was con- Because Bustillos did not demonstrate a clearly
ducted in an improper manner, other courts of established right, it follows that her claims for
appeals have focused on several factors: location, deliberate indifference against the District also
hygiene, medical training, emotional and physical fail.
trauma, and the availability of alternatives.
The Amended Complaint’s county liability theory
Accordingly, Bustillos’ allegations could poten- is premised on the District’s “deliberate indiffer-
tially assert a constitutional violation. The com- ence” to the need “to train its personnel in how to
plaint is, however, ambiguous on critical factual handle government request[s] for body cavity
allegations. For instance, it is unclear who searches.” However, a “policymaker cannot
Bustillos alleges actually ordered the various exhibit fault rising to the level of deliberate indif-
searches. Further, it is unclear what the CBP offi- ference to a constitutional right when that right
cers told medical staff regarding their basis for has not yet been clearly established.” The district
requesting the various searches. These facts are court properly dismissed the county liability
important because the officers’ articulation of claim.
probable cause for a minimally invasive search,
such as the x-ray, would not necessarily shield the Though the treatment Bustillos allegedly suffered
Doctors and Nurses from liability for the more is concerning, Bustillos has failed to assert a valid
intrusive searches, such as the rectal probe, if the claim for relief under either Texas state law or the
officers did not request that search or represent law of our circuit at the time of the alleged con-
that sufficient suspicion justified it. However, if duct. We AFFIRM in full.
the officers requested all of the medical examina-
tions, the Doctors and Nurses would have a strong Bustillos v. El Paso Co. Hosp. Dist., et. al., Fifth
rd
argument that they had no duty to second-guess Cir., No. 17-50022, May 23 , 2018.
the Fourth Amendment basis for those searches.

Regardless, we need not determine the sufficiency
of Bustillos’ allegations. Even if the complaint
sufficiently alleges a Constitutional violation, the

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