Case: 19-40042 Document: 00515372770 Page: 1 Date Filed: 04/06/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-40042 April 6, 2020 Lyle W. Cayce CARLOS A. MARTINEZ, Clerk Plaintiff - Appellant v. UNITED STATES OF AMERICA, Defendant - Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 1:17-CV-11 Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges. PER CURIAM:* Carlos Martinez sued the United States for damages under the Federal Tort Claims Act (FTCA) for injuries resulting from an automobile collision allegedly caused by United States Customs and Border Protection Agent Fabian Rocha. The district court granted summary judgment in favor of the United States. We AFFIRM. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 19-40042 Document: 00515372770 Page: 2 Date Filed: 04/06/2020 No. 19-40042 I. This case arises out of an automobile collision that occurred on January 26, 2016 in Brownsville, Texas. While in pursuit of a suspected drug smuggler, United States Customs and Border Protection Agent Fabian Rocha turned right onto Old Military Road when his vehicle struck Carlos Martinez’s vehicle, which was stopped at a stop sign near the intersection of Highway 281 and Old Military Road. Martinez sued the United States for damages under the Federal Tort Claims Act (FTCA) for injuries resulting from that collision, alleging that Agent Rocha was negligent. The Government moved to dismiss for failure to state a claim, or alternatively, for summary judgment, asserting as a defense the Texas Emergency Vehicle Privilege, a statutory privilege set forth in §§ 546.001–.005 of the Texas Transportation Code. The United States argued that the asserted privilege precluded liability for Martinez’s FTCA claim of negligence unless the facts of the case demonstrate that Agent Rocha acted with reckless disregard at the time of the accident. The district court granted summary judgment for the Government, finding that Agent Rocha’s “activation of the vehicle’s emergency lights and application of brakes do not support a finding of reckless disregard as to Agent Rocha’s actions.” Because it concluded that Martinez failed to raise material issues of fact to infer that Agent Rocha acted with reckless disregard, the district court held Agent Rocha’s actions were privileged under the Texas Transportation Code. Martinez appealed. Martinez and the United States agree that the Texas Transportation Code privilege applies to Agent Rocha’s conduct and shields the United States from FTCA liability unless Agent Rocha acted with “reckless disregard for the 2 Case: 19-40042 Document: 00515372770 Page: 3 Date Filed: 04/06/2020 No. 19-40042 safety of others.” 1 Tex. Transp. Code § 546.005. Further, it is undisputed that Agent Rocha, a U.S. Customs and Border Protection Agent, was operating an authorized emergency vehicle in pursuit of a suspected drug smuggler at the time of the collision. Thus, as it was before ...
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