Roxana Santos v. Frederick County Board of Commissioners , 725 F.3d 451 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1980
ROXANA ORELLANA SANTOS,
Plaintiff – Appellant,
v.
FREDERICK COUNTY BOARD OF COMMISSIONERS; CHARLES JENKINS,
Frederick County Sheriff, in his official and individual
capacity; JEFFREY OPENSHAW, Frederick County Deputy Sheriff,
in his official and individual capacity; KEVIN LYNCH,
Frederick County Deputy Sheriff, in his official and
individual capacity,
Defendants – Appellees,
and
JULIE L. MEYERS, former Assistant Secretary for Homeland
Security of Immigration and Customs Enforcement, in her
official and individual capacity; CALVIN MCCORMICK, Field
Office Director of the ICE Office of Detention and Removal,
in his official and individual capacity; JAMES A. DINKINS,
Special Agent in Charge of the ICE Office of Investigations,
Baltimore, MD, in his official and individual capacity,
Defendants.
--------------------------------
IMMIGRATION REFORM LAW INSTITUTE,
Amicus Supporting Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Senior District
Judge. (1:09-cv-02978-BEL)
Argued: May 15, 2013 Decided: August 7, 2013
Before DAVIS and WYNN, Circuit Judges, and James R. SPENCER,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Wynn wrote the opinion, in which Judge Davis and
Judge Spencer concurred.
ARGUED: John Carney Hayes, Jr., NIXON PEABODY, LLP, Washington,
D.C., for Appellant. Sandra Diana Lee, KARPINSKI, COLARESI &
KARP, P.A., Baltimore, Maryland, for Appellees. ON BRIEF:
Daniel Karp, KARPINSKI, COLARESI & KARP, Baltimore, Maryland,
for Appellees. Michael M. Hethmon, Garrett R. Roe, IMMIGRATION
REFORM LAW INSTITUTE, Washington, D.C., for Amicus Supporting
Appellees.
2
WYNN, Circuit Judge:
Plaintiff Roxana Orellana Santos appeals the dismissal of
her 42 U.S.C. § 1983 action against the Frederick County
(Maryland) Board of Commissioners, the Frederick County Sheriff,
and two deputy sheriffs. Santos alleged that the deputies
violated her Fourth Amendment rights when, after questioning her
outside of her workplace, they arrested her on an outstanding
civil warrant for removal issued by Immigration and Customs
Enforcement (“ICE”). The U.S. District Court for the District
of Maryland granted summary judgment to all defendants,
concluding that Santos’s initial questioning by the deputies did
not implicate the Fourth Amendment and that the civil
immigration warrant justified Santos’s subsequent stop and
arrest.
We agree with the district court that the deputies did not
seize Santos until one of the two deputies gestured for her to
remain seated while they verified that the immigration warrant
was active. But the civil immigration warrant did not provide
the deputies with a basis to arrest or even briefly detain
Santos. Nonetheless, we conclude that the individual defendants
are immune from suit because at the time of the encounter
neither the Supreme Court nor this Court had clearly established
that local and state law enforcement officers may not detain or
arrest an individual based on a civil immigration warrant.
3
Qualified immunity does not extend, however, to municipal
defendants. We therefore affirm the district court’s award of
summary judgment to the deputies and the Sheriff and vacate the
district court’s dismissal of Santos’s action against the
municipal defendants.
I.
A.
A native of El Salvador, Santos moved to the United States
in 2006. On an October morning in 2008, Santos sat on a curb
behind the Common Market food co-op in Frederick, Maryland,
where she worked as a dishwasher. Santos ate a sandwich while
waiting for her shift to begin. From the curb, Santos faced a
grassy area and pond that ran along the rear of the shopping
complex in which the co-op was located. A large metal shipping
container stood between her and the shopping complex. As Santos
ate, she saw a Frederick County Sheriff’s Office (the “Sheriff’s
Office”) patrol car slowly approach her from her left. She
remained seated, in full view of the patrol car, and continued
eating her sandwich.
Deputy Sheriffs Jeffrey Openshaw and Kevin Lynch were in
the car conducting a routine patrol of the area. Although the
Sheriff’s Office had reached an agreement with ICE under 9
U.S.C. § 1357(g) authorizing certain deputies to assist ICE in
4
immigration enforcement efforts, neither Openshaw nor Lynch was
trained or authorized to participate in immigration enforcement.
The deputies parked the patrol car on the side of the
shipping container opposite Santos. Openshaw and Lynch stepped
out of the patrol car and walked toward Santos, going around
opposite sides of the shipping container to reach her. Both
deputies wore standard uniforms and carried guns.
Openshaw stopped about six feet away from her and asked her
if she spoke English, to which she responded, “No.” J.A. 095,
398-99. Lynch stood closer to the patrol car. It was
immediately apparent to Openshaw that Santos, a native Spanish
speaker, had difficulty communicating in English. Openshaw
asked Santos in English whether she was on break, and she
replied that she was. He then asked her if she worked at the
Common Market, and she said she did. Again in English, Openshaw
asked her whether she had identification, and she responded in
Spanish that she did not.
At this point, Openshaw stepped away from Santos to speak
privately with Lynch near the patrol car. Santos remained
seated. After a few minutes, Santos recalled that she had her
El Salvadoran national identification card in her purse. Still
sitting, she showed the card to the deputies. Openshaw took the
card and asked her whether the name on the ID was hers. She
told him it was, and he walked back to the car to speak with
5
Lynch. Santos estimated that by this time at least fifteen
minutes had passed since the deputies first approached her. As
the deputies stood together talking, Santos saw Openshaw use his
radio.
The deputies said that once they received Santos’s
identification information, they relayed it to radio dispatch to
run a warrant check on Santos. After completing the warrant
check, dispatch informed the deputies that Santos had an
outstanding ICE warrant for “immediate deportation.” J.A. 188.
Following standard procedure, Openshaw asked dispatch to verify
that the ICE warrant was active. Although he did not know what
dispatch did in this particular case, Openshaw testified that
dispatch typically contacts ICE when verifying an immigration
warrant. Openshaw also said that at this point he considered
Santos to be under arrest, though he had not yet handcuffed her.
After dispatch had initially notified the deputies of the
ICE warrant but before dispatch had determined whether the
warrant was active, Santos asked the deputies if there was any
problem. Openshaw replied, “No, no, no,” and held out his hand,
gesturing for her to remain seated. J.A. 136.
About twenty minutes after she handed the deputies her
national ID card, Santos decided to head into the food co-op to
start her shift. When she attempted to stand, the deputies, who
just had been informed by dispatch that the warrant was active,
6
grabbed her by the shoulders and handcuffed her. Until this
point, neither deputy had had any physical contact with her.
The deputies placed Santos in the patrol car, transported
her to patrol headquarters, and then transferred her to a
Maryland detention center. Approximately forty-five minutes
after Santos’s arrest, ICE Senior Special Agent S. Letares
requested that the detention center hold Santos on ICE’s behalf.
ICE initially held Santos in two Maryland facilities and then
transferred her to a jail in Cambridge, Massachusetts, where she
stayed until her supervised release on November 13, 2008.
Santos v. Frederick Cnty. Bd. of Comm’rs, 884 F. Supp. 2d 420,
425 (D. Md. 2012).
B.
In November 2009, Santos filed a Section 1983 complaint
against Openshaw and Lynch, Frederick County Sheriff Charles
Jenkins, the Frederick County Board of Commissioners, and
several individuals from ICE and the Department of Homeland
Security. The complaint alleged that the deputies violated her
Fourth Amendment rights when they seized and later arrested her.
The complaint also alleged that the deputies violated her rights
under the Equal Protection Clause of the Fourteenth Amendment
because the deputies “approached . . . and interrogated her
7
based solely on her perceived race, ethnicity and/or national
origin.” J.A. 102.
All defendants moved to dismiss Santos’s initial complaint
under Rule 12(b)(6). The district court dismissed without
prejudice the Section 1983 claims against the deputies on
grounds that the complaint alleged that the deputies were acting
under the color of federal law and thus the action should have
been brought under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).1 Santos v. Frederick
Cnty. Bd. of Comm’rs, No: L-09-2978, 2010 WL 3385463, at *3 (D.
Md. Aug. 25, 2010). The district court also bifurcated her
supervisory liability claims against Sheriff Jenkins and the
Board of Commissioners, and stayed those claims pending
resolution of Santos’s claims against the deputies. Id. at *4.
Santos filed a second amended complaint against the same
defendants, asserting essentially the same claims as in the
previously dismissed complaint. And she did not recharacterize
her claims against the municipal defendants as Bivens claims.
After discovery, the deputies moved for summary judgment.
The district court granted the deputies’ motion, concluding that
there was no dispute of fact regarding whether the deputies
1
Bivens established a private right of action to remedy
constitutional injuries attributable to individuals acting under
the color of federal law. 403 U.S. at 397.
8
violated Santos’s Fourth Amendment rights. Santos, 884 F. Supp.
2d at 428-29. In particular, the district court held that
Santos was not “seized” for purposes of the Fourth Amendment
until Openshaw gestured for her to remain seated, and that, at
that time, the civil ICE warrant provided the deputies with
adequate justification for the seizure. Id. The district court
further concluded that Santos’s Equal Protection claim failed as
a matter of law, holding that law enforcement officers do not
violate the Equal Protection Clause if they initiate consensual
encounters solely on the basis of racial considerations.2 Id. at
429-30. Having concluded that the deputies did not violate
Santos’s constitutional rights, the district court also
dismissed Santos’s claims against Sheriff Jenkins and the
Frederick County Board of Commissioners. Id. at 432.
2
Santos did not appeal the district court’s Equal
Protection decision, and it is therefore not before us.
Nevertheless, we note that while this Circuit has not yet
addressed the issue, see United States v. Henderson, 85 F.3d
617, 1996 WL 251370, at *2 (4th Cir. 1996) (unpublished table
decision) (declining to decide “whether selecting persons for
consensual interviews based solely on race raises equal
protection concerns”), two other Circuit Courts have indicated
that consensual encounters initiated solely based on race may
violate the Equal Protection Clause, United States v. Avery, 137
F.3d 343, 353 (6th Cir. 1997) (“[C]onsensual encounters may
violate the Equal Protection Clause when initiated solely based
on racial considerations.”); United States v. Manuel, 992 F.2d
272, 275 (10th Cir. 1993) (“[S]electing persons for consensual
interviews based solely on race is deserving of strict scrutiny
and raises serious equal protection concerns.”).
9
Santos moved for reconsideration under Federal Rule of
Civil Procedure 59(e), highlighting a number of federal court
decisions authored after the district court’s summary judgment
hearing holding that state and local governments lack inherent
authority to enforce civil federal immigration law. The
district court denied Santos’s motion, holding that even if the
other federal court decisions and the Supreme Court’s landmark
immigration decision in Arizona v. United States, 132 S. Ct.
2492, 2507 (2012), suggested an “emerging consensus” that local
officers may not enforce civil immigration law, the deputies
were still entitled to qualified immunity for their conduct.
J.A. 624. Santos timely appealed.
II.
The Fourth Amendment secures an individual’s right to be
free from “unreasonable searches and seizures.” U.S. Const.
amend. IV. In determining whether a law enforcement officer
unconstitutionally seized an individual, we engage in a multi-
step inquiry. Because “not every encounter between a police
officer and a citizen is an intrusion requiring an objective
justification,” United States v. Mendenhall, 446 U.S. 544, 553
(1980) (opinion of Stewart, J.), we first must decide if and
when the individual was “seized” for purposes of the Fourth
Amendment, United States v. Wilson, 953 F.2d 116, 120 (4th Cir.
10
1991). If we conclude the individual was “seized,” we then
determine whether the law enforcement officer had adequate
justification to support the seizure. Terry v. Ohio, 392 U.S.
1, 20-22 (1968). Finally, in Section 1983 cases, even if a
seizure runs afoul of the Fourth Amendment, a plaintiff may not
be able to obtain relief if the defendant is entitled to
qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
Santos raises objections to the district court’s rulings on
each of these three issues. In particular, Santos argues that
the district court (1) improperly determined that she was not
“seized” when the deputies initially approached and questioned
her; (2) incorrectly held that the deputies did not violate her
Fourth Amendment rights when they detained and later arrested
her based on the civil ICE warrant; and (3) erred in holding
that, even if the deputies had violated Santos’s constitutional
rights, they were entitled to qualified immunity for their
actions. We address these arguments in turn, reviewing each de
novo and viewing facts and all reasonable inferences in the
light most favorable to the nonmoving party. Rosetta Stone Ltd.
v. Google, Inc., 676 F.3d 144, 150 (4th Cir. 2012); Pritchett v.
Alford, 973 F.3d 307, 313 (4th Cir. 1992).
11
III.
A.
Regarding the threshold question of whether the encounter
constituted a Fourth Amendment seizure, the Supreme Court has
identified three categories of police-citizen encounters.
United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002).
Each category represents differing degrees of restraint and,
accordingly, requires differing levels of justification. See
id. First, “consensual” encounters, the least intrusive type of
police-citizen interaction, do not constitute seizures and,
therefore, do not implicate Fourth Amendment protections.
Florida v. Bostick, 501 U.S. 429, 434 (1991). Second, brief
investigative detentions-commonly referred to as “Terry stops”-
require reasonable, articulable suspicion of criminal activity.
Terry, 392 U.S. at 21. Finally, arrests, the most intrusive
type of police-citizen encounter, must be supported by probable
cause. Devenpeck v. Alford, 53 U.S. 146, 152 (2006).
A police-citizen encounter rises to the level of a Fourth
Amendment seizure when “the officer, by means of physical force
or show of authority, has in some way restrained the liberty of
a citizen . . . .” United States v. Jones, 678 F.3d 293, 299
(4th Cir. 2012) (quoting Terry, 392 U.S. at 19 n.16). This
inquiry is objective, Weaver, 282 F.3d at 309, asking whether
“‘in view of all of the circumstances surrounding the incident,
12
a reasonable person would have believed that he was not free to
leave.’” Jones, 678 F.3d at 299 (quoting Mendenhall, 446 U.S.
at 553). An encounter generally remains consensual when, for
example, police officers engage an individual in routine
questioning in a public place. United States v. Gray, 883 F.2d
320, 323 (1989); see also Bostick, 501 U.S. at 434 (“[M]ere
police questioning does not constitute a seizure.”).
We have identified a number of non-exclusive factors to
consider in determining whether a police-citizen encounter
constitutes a seizure:
the number of police officers present during the
encounter, whether they were in uniform or displayed
their weapons, whether they touched the defendant,
whether they attempted to block his departure or
restrain his movement, whether the officers’
questioning was non-threatening, and whether they
treated the defendant as though they suspected him of
“illegal activity rather than treating the encounter
as ‘routine’ in nature.”
Jones, 678 F.3d at 299-300 (quoting Gray, 883 F.2d at 322-23).
We also consider “the time, place, and purpose” of an encounter.
Weaver, 282 F.3d at 310.
Although the inquiry is objective—and thus the subjective
feelings of the law enforcement officers and the subject are
irrelevant—we also consider certain individual factors that
“might have, under the circumstances, overcome that individual’s
freedom to walk away.” Gray, 883 F.2d at 323. For example, in
Gray, this Circuit indicated that an individual’s lack of
13
familiarity with English may be a relevant consideration. Id.Nevertheless, “no one factor is dispositive;” rather, we
determine whether an encounter is consensual by considering the
totality of the circumstances. Weaver, 282 F.3d at 310.
B.
Here, Santos argues that she was “seized” for purposes of
the Fourth Amendment when the deputies “surrounded her and began
questioning her.” Appellant’s Br. at 20. In particular,
Santos emphasizes, among other factors, that the deputies
approached her from opposite sides of the shipping container,
that she was questioned by more than one officer, that the
deputies wore uniforms and carried guns, and that she was
unfamiliar with English. By contrast, the defendants contend
that the deputies’ interaction with Santos remained consensual
until after the deputies had been informed of the outstanding
warrant.
The district court decided that Santos was not seized when
the deputies initially approached her. Santos, 884 F. Supp. 2d
at 428. In light of precedent and the totality of the
circumstances before us, we must agree.
The deputies approached Santos during the daytime and in a
public area where employees would “frequently” take breaks or
eat lunch. J.A. 431; see Weaver, 282 F.3d at 312 (finding
14
encounter occurring in “public parking lot in the middle of the
day” was consensual); Gray, 883 F.3d at 323-24 (holding that
“public setting” diminished coerciveness of police-citizen
encounter). They came across Santos as part of a routine
patrol, rather than singling her out for investigation. Jones,
678 F.3d at 301 (holding that “routine” encounters are more
likely to be consensual than “targeted” encounters). The
deputies stood well away from Santos-Deputy Openshaw stood
approximately six feet from her, and Deputy Lynch was even
farther way, standing near the patrol car-giving her ample space
to leave had she elected to do so.
No evidence suggests that the deputies used a commanding or
threatening tone in questioning Santos. And the types of
questions the deputies posed-asking her for identification,
whether she was an employee of the co-op, and whether she was on
break-are the types of questions law enforcement officers
generally may ask without transforming a consensual encounter
into a Fourth Amendment seizure. See United States v. Drayton,
536 U.S. 194, 201 (2002) (“Even when law enforcement officers
have no basis for suspecting a particular individual, they may
pose questions [and] ask for identification . . . .”). Finally,
the deputies did not touch Santos until they placed her under
arrest.
15
Additionally, none of the factors Santos highlighted
sufficiently call into question our conclusion that the
encounter was consensual at inception. Although two deputies
were present, only Openshaw approached and questioned Santos.
See United States v. Thompson, 546 F.3d 1223, 1227 (10th Cir.
2008) (holding that encounter was consensual when there were
multiple officers present but only one officer approached the
individual). Moreover, absent other indicia that an encounter
is nonconsensual, the presence of two officers is generally
insufficient. Mendenhall, 446 U.S. at 555 (holding that police-
citizen encounter was consensual when two officers questioned
the individual); Gray, 883 F.2d at 323 (same). And even though
the deputies approached her from opposite sides of the shipping
container, they stood well back from her, leaving her room to
walk away.
Santos also notes that the deputies were wearing standard
uniforms and carrying guns. But the deputies never brandished
their weapons, and, in some cases, uniforms serve as a “cause
for assurance, not discomfort.” Drayton, 536 U.S. at 204-05(noting that “[t]he presence of a holstered firearm . . . is
unlikely to contribute to the coerciveness of [an] encounter
absent active brandishing of the weapon”). Finally, although
the language barrier may have added to the coerciveness of the
situation, because no one factor is dispositive, the language
16
barrier, on its own, is insufficient to turn the otherwise
consensual encounter into a seizure. See Weaver, 282 F.3d at
310.
C.
Even though the encounter initially did not implicate the
Fourth Amendment, “[s]ome contacts that start out as
constitutional may . . . at some unspecified point, cross the
line and become an unconstitutional seizure.” Id. at 309. Like
the district court, we conclude that the consensual encounter
became a Fourth Amendment seizure when Openshaw gestured for
Santos to remain seated. Santos, 884 F. Supp. 2d at 428.
Openshaw’s gesture “unambiguous[ly]” directed Santos to
remain seated. See Brendlin v. California, 551 U.S. 249, 255
(2007) (stating that a seizure occurs “[w]hen the actions of the
police . . . show an unambiguous intent to restrain”). As the
district court correctly explained, “[u]nder the circumstances,
Openshaw’s gesture would have communicated to a reasonable
person that she was not at liberty to rise and leave.” Santos,
884 F. Supp. 2d at 428. Indeed, Santos understood as much,
remaining seated after Openshaw’s gesture. See United States v.
Jones, 562 F.3d 768, 774 (6th Cir. 2009) (holding that
individuals were seized for purposes of the Fourth Amendment
17
when they “passively acquiesced” in response to officer’s show
of authority).
IV.
Having concluded that Santos was seized when Openshaw
gestured for her to remain seated, we now must determine whether
the deputies violated her constitutional rights when they
detained and subsequently arrested her on the civil ICE warrant.
Santos argues that her seizure and arrest violated the Fourth
Amendment because neither of the deputies was certified or
authorized to engage in enforcement of federal civil immigration
law.
A.
Before addressing the merits of Santos’s constitutional
claims, we first must determine whether this question is
properly before us on appeal. The defendants contend that
Santos abandoned any claim that the deputies’ actions
constituted the unauthorized enforcement of federal civil
immigration law, or, in the alternative, that Santos waived such
argument during oral argument on the summary judgment motion.
Both arguments are without merit.
First, the defendants argue that Santos abandoned any claim
that the deputies had no authority to enforce federal civil
18
immigration law by failing to restyle her action as a Bivens
claim after the district court dismissed her initial complaint
for failure to state a claim. In the Rule 12(b)(6) dismissal,
the district court held that the initial complaint was
improperly styled as a Section 1983 action because 8 U.S.C. §
1357(g)(8) provides that a local law enforcement officer “acting
under . . . any agreement [with ICE under Section 1357(g)] shall
be considered to be acting under color of federal authority for
purposes of determining liability . . . in a civil action.”
J.A. 81. Yet it is undisputed that the deputies were not
participating in the Sheriff’s Office’s Section 1357(g) program
with ICE. And Santos avers that they were not acting under
color of federal authority. See, e.g., J.A. 101 (“Defendants
Openshaw and Lynch detained [and] arrested Ms. Orellana Santos
without the legal authority to do so . . . .”). Accordingly,
Santos properly refiled her complaint as a Section 1983 action.
Further, the defendants contend that Santos waived any
argument that the deputies lacked authority to make an arrest
based on a civil ICE warrant when, during oral argument on the
summary judgment motion, her counsel said that “we certainly
don’t dispute the fact that once . . . the deputies are aware
that there is an active warrant, they have probable cause.”
J.A. 503. But it is not clear from the transcript whether the
reference to “active warrant” refers to a civil warrant or a
19
criminal warrant. And earlier during oral argument, Santos’s
counsel said that local police lack authority to enforce federal
immigration laws. Moreover, Santos’s summary judgment brief
unambiguously argued that the deputies lacked authority to
enforce civil federal immigration law. The defendants cite no
authority, nor can we find any, holding that an ambiguous
statement made during oral argument waives an argument clearly
raised in a brief.
B.
Having concluded that the issue is properly before us, we
now address the merits of Santos’s claim that the deputies
violated her Fourth Amendment rights by seizing and arresting
her based on the civil ICE removal warrant. Because the
Constitution grants Congress plenary authority over immigration,
Johnson v. Whitehead, 647 F.3d 120, 126-27 (4th Cir. 2011),
state and local law enforcement officers may participate in the
enforcement of federal immigration laws only in “specific,
limited circumstances” authorized by Congress, Arizona v. United
States, 132 S. Ct. at 2507.
Local law enforcement officers may assist in federal
immigration enforcement efforts under 8 U.S.C. § 1357(g)(1),
which authorizes the Attorney General to enter into agreements
with local law enforcement agencies that allow specific local
20
officers to perform the functions of federal immigration
officers. Arizona v. United States, 132 S. Ct. at 2506. Even
in the absence of a written agreement, local law enforcement
agencies may “cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens
not lawfully present in the United States.” § 1357(g)(10)(B).
When enforcing federal immigration law pursuant to Section
1357(g), local law enforcement officers are “subject to the
direction and supervision of the Attorney General.” §
1357(g)(3).
Other statutory provisions authorize local law enforcement
officers to engage in immigration enforcement in more
circumscribed situations. See, e.g., § 1103(a)(10) (allowing
the Attorney General to authorize local law enforcement officers
to assist in immigration enforcement in the event of an “actual
or imminent mass influx of aliens arriving off the coast of the
United States”); § 1252c(a) (authorizing local law enforcement
officers to arrest illegally present aliens who have “previously
been convicted of a felony in the United States and deported or
left the United States after such conviction”); § 1324(c)
(allowing local law enforcement officers to arrest individuals
for bringing in and harboring certain aliens).
Although not clearly addressed by federal statute, state
and local law enforcement officers also may be able to
21
investigate, detain, and arrest individuals for criminal
violations of federal immigration law. In particular, before
Arizona v. United States, some Circuits held that neither the
Fourth Amendment nor federal immigration law precludes state and
local enforcement of federal criminal immigration law. See,
e.g., United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296
(10th Cir. 1999). And we have indicated that local law
enforcement officials may detain or arrest an individual for
criminal violations of federal immigration law without running
afoul of the Fourth Amendment, so long as the seizure is
supported by reasonable suspicion or probable cause and is
authorized by state law. United States v. Guijon-Ortiz, 660
F.3d 757, 764 & 764 n.3 (4th Cir. 2011). But we have not had
occasion to address whether federal immigration law preempts
state and local officers from enforcing federal criminal
immigration laws. And the Supreme Court has expressly left that
question open. Arizona v. United States, 132 S. Ct. at 2509.
Although the Supreme Court has not resolved whether local
police officers may detain or arrest an individual for suspected
criminal immigration violations, the Court has said that local
officers generally lack authority to arrest individuals
suspected of civil immigration violations. Noting that “[a]s a
general rule, it is not a crime for a removable alien to remain
present in the United States,” the Supreme Court concluded that
22
“[i]f the police stop someone based on nothing more than
possible removability, the usual predicate for arrest is
absent.” Id. at 2505. Relying on this rule, the Supreme Court
held unconstitutional a provision in an Arizona statute that
authorized a state officer to “‘without a warrant . . . arrest a
person if the officer has probable cause to believe . . . [the
person] has committed any public offense that makes [him]
removable from the United States.’” Id. (quoting Ariz. Rev.
Stat. Ann. § 13-3883(A)(5)).
Lower federal courts have universally-and we think
correctly-interpreted Arizona v. United States as precluding
local law enforcement officers from arresting individuals solely
based on known or suspected civil immigration violations. See
Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012);
Melendres v. Arpaio, No. PHX-CV-07-02513-GMS, 2013 WL 2297173,
at *60-63 (D. Ariz. May 24, 2013); Buquer v. City of
Indianapolis, No. 1:11-cv-00708-SEB-MJD, 2013 WL 1332158, at
*10-11 (S.D. Ind. Mar. 28, 2013).
The rationale for this rule is straightforward. A law
enforcement officer may arrest a suspect only if the officer has
“‘probable cause’ to believe that the suspect is involved in
criminal activity.” Brown v. Texas, 443 U.S. 47, 51 (1979).
Because civil immigration violations do not constitute crimes,
suspicion or knowledge that an individual has committed a civil
23
immigration violation, by itself, does not give a law
enforcement officer probable cause to believe that the
individual is engaged in criminal activity. Melendres, 695 F.3d
at 1000-01. Additionally, allowing local law enforcement
officers to arrest individuals for civil immigration violations
would infringe on the substantial discretion Congress entrusted
to the Attorney General in making removability decisions, which
often require the weighing of complex diplomatic, political, and
economic considerations. See Arizona v. United States, 132 S.
Ct. at 2506-07.
Although Arizona v. United States did not resolve whether
knowledge or suspicion of a civil immigration violation is an
adequate basis to conduct a brief investigatory stop, the
decision noted that “[d]etaining individuals solely to verify
their immigration status would raise constitutional concerns.”
Id. at 2509. Nonetheless, the Court’s logic regarding arrests
readily extends to brief investigatory detentions. In
particular, to justify an investigatory detention, a law
enforcement officer must have reasonable, articulable suspicion
that “criminal activity may be afoot.” Terry, 392 U.S. at 30.
And because civil immigration violations are not criminal
offenses, suspicion or knowledge that an individual has
committed a civil immigration violation “alone does not give
24
rise to an inference that criminal activity is ‘afoot.’”
Melendres, 695 F.3d at 1001.
Therefore, we hold that, absent express direction or
authorization by federal statute or federal officials, state and
local law enforcement officers may not detain or arrest an
individual solely based on known or suspected civil violations
of federal immigration law.
Like the district court, we conclude that the deputies
seized Santos for purposes of the Fourth Amendment when Deputy
Openshaw gestured for her to stay seated after dispatch informed
him of the outstanding civil ICE deportation warrant. See supra
Part III.C. At that time, the deputies’ only basis for
detaining Santos was the civil ICE warrant. Yet as the
defendants concede, the deputies were not authorized to engage
in immigration law enforcement under the Sheriff’s Office’s
Section 1357(g)(1) agreement with the Attorney General. They
thus lacked authority to enforce civil immigration law and
violated Santos’s rights under the Fourth Amendment when they
seized her solely on the basis of the outstanding civil ICE
warrant.
C.
We find unpersuasive the defendants’ arguments that the
deputies lawfully detained and arrested Santos. First, the
25
defendants contend that the deputies properly seized Santos
pursuant to Section 1357(g)(10), which, as previously explained,
allows state law enforcement officers to “cooperate” with the
federal government in immigration enforcement, even when
officers are not expressly authorized to do so under a Section
1357(g)(1) agreement. In Arizona v. United States, the Supreme
Court concluded that “no coherent understanding of [‘cooperate’
in Section 1357(g)(10)] would incorporate the unilateral
decision of state officers to arrest an alien for being
removable absent any request, approval, or other instruction
from the Federal Government.” 132 S. Ct. at 2507. Thus,
Arizona v. United States makes clear that under Section
1357(g)(10) local law enforcement officers cannot arrest aliens
for civil immigration violations absent, at a minimum, direction
or authorization by federal officials.
The defendants assert that Santos’s detention and arrest
was lawful under Section 1357(g)(10) because “there is no
dispute that ICE . . . directed the Deputies to detain Santos
and to transfer her to the ICE detention facility . . . .”
Appellee’s Br. at 48. Although there may be no dispute as to
whether ICE directed the deputies to detain Santos at some
point, the key issue for our purposes is when ICE directed the
deputies to detain her. We conclude that the deputies seized
Santos when Deputy Openshaw told her to remain seated-after they
26
had learned of the outstanding ICE warrant but before dispatch
confirmed with ICE that the warrant was active. See supra Part
III.C. Indeed, ICE’s request that Santos be detained on ICE’s
behalf came fully forty-five minutes after Santos had already
been arrested. Therefore, it is undisputed that the deputies’
initial seizure of Santos was not directed or authorized by ICE.
And the ICE detainer does not cleanse the unlawful
seizure, because “[t]he reasonableness of an official invasion
of [a] citizen’s privacy must be appraised on the basis of the
facts as they existed at the time that invasion occurred.”
United States v. Jacobsen, 466 U.S. 109, 115 (1984); see also
Beck v. Ohio, 379 U.S. 89, 91 (1964) (“Whether [an] arrest was
constitutionally valid depends in turn upon whether, at the
moment the arrest was made, the officers had probable cause to
make it-whether at that moment the facts and circumstances
within their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man
in believing that the petitioner had committed or was committing
an offense.” (emphasis added)).
The defendants also suggest that in Guijon-Ortiz and United
States v. Soriano-Jarquin, 492 F.3d 495 (4th Cir. 2007), this
Court established that evidence of “unlawful[] presen[ce]”
constitutes reasonable suspicion to detain an individual pending
transport to ICE. Appellee’s Br. at 40. The defendants’
27
reliance on Guijon-Ortiz and Soriano-Jarquin, both of which were
decided before Arizona v. United States, is misplaced.
The defendants correctly note that in Guijon-Ortiz we said
that a county sheriff’s deputy had reasonable suspicion to
arrest the defendant for “unlawful . . . presence in the
country” when, during the course of a lawful traffic stop, the
deputy learned that the defendant had presented him with a
fraudulent green card. 660 F.3d at 765. Guijon-Ortiz is
inapposite because the deputy had reasonable suspicion that the
defendant violated a criminal provision of federal immigration
law-knowingly using a false or fraudulent immigration
identification card in violation of 18 U.S.C. § 1546(a), id. at
763 n.3-not a civil provision, as was the case here. Further,
in Guijon-Ortiz the deputy detained and transported the
defendant only after being expressly directed to do so by ICE,
id. at 760, which, as previously explained, was not the case
here.
In Soriano-Jarquin, we considered whether a state police
officer violated the Fourth Amendment when, during a lawful
traffic stop, the officer asked passengers in a van for
identification. 492 F.3d at 496. After being advised by the
driver of the van that the passengers were illegal aliens and
while diligently pursuing the independent basis for the traffic
stop, the officer contacted ICE, which directed him to detain
28
the van pending arrival of ICE agents. Id. at 496-97.
Therefore, like Guijon-Ortiz, Soriano-Jarquin is readily
distinguishable because the police officer detained the
passengers at ICE’s express direction.
Third, the defendants assert that the deputies lawfully
detained Santos because there is no evidence in the record that
the ICE warrant was civil rather than criminal. But the
deputies testified that the warrant was for “deportation.” And
the Supreme Court has long characterized deportation as a civil
proceeding. See, e.g., Padilla v. Kentucky, 130 S. Ct. 1473,
1481 (2010);3 United States ex rel. Bilokumsky v. Tod, 263 U.S.
149, 155 (1923). Therefore, the record does indeed contain
evidence the ICE warrant was civil in nature.
More significantly, even if the record had been devoid of
evidence regarding whether the warrant was civil or criminal,
the defendants’ argument misses the mark because law enforcement
officers, not detainees, are responsible for identifying
evidence justifying a seizure. United States v. Branch, 537
F.3d 328, 337 (4th Cir. 2008) (“In order to demonstrate
reasonable suspicion, a police officer must offer ‘specific and
3
Padilla characterizes “removal” as a civil proceeding.
130 S. Ct. at 1481. In 1996, Congress combined “deportation”
proceedings with “exclusion” proceedings to form a single
“removal” proceeding. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-208, § 304(a), 110 Stat.
3009-587, adding 8 U.S.C. § 1229a.
29
articulable facts’ that demonstrate at least ‘a minimal level of
objective justification’ for the belief that criminal activity
is afoot.” (quoting Illinois v. Wardlow, 528 U.S. 119, 123
(2000))). Consequently, when affirmative evidence does not
justify a seizure, the seizure violates the Fourth Amendment.
Therefore, it was the deputies’ responsibility to determine
whether the warrant was for a criminal or civil immigration
violation before seizing Santos. And because they did not
determine that the warrant was criminal in nature (nor could
they have—because it was not), her detention was unlawful.
Relatedly, the defendants suggest that the ICE warrant was
criminal because it was included in the National Crime
Information Center (“NCIC”) database and “the enabling
legislation for the NCIC provides only that crime records can be
entered into the database.” Appellee’s Br. at 48 (citing 28
U.S.C. § 534(a)). We agree with the defendants that there is a
good argument that Section 534(a)(1), which directs the Attorney
General to “acquire, collect, classify, and preserve
identification, criminal identification, crime, and other
records,” does not authorize inclusion of civil immigration
records in the NCIC database. See Doe v. Immigration & Customs
Enforcement, 2006 WL 1294440, at *1-3 (S.D.N.Y. May 10, 2006)
(explaining that the plain language of Section 534, ordinary
canons of statutory construction, and legislative history
30
demonstrate that the government lacks authority to include civil
immigration records in the NCIC database); Michael J. Wishnie,
State and Local Police Enforcement of Immigration Laws, 6 U. Pa.
J. Const. L. 1084, 1095-1101 (2004) (same).
Nonetheless, in the aftermath of the September 11, 2001
attacks, the Attorney General authorized inclusion of civil
immigration records in the NCIC database, including information
on individuals, like Santos, who are the subject of outstanding
removal orders. John Ashcroft, U.S. Att’y Gen., Prepared
Remarks on the National Security Entry-Exit Registration System
(June 6, 2012), available at
http://www.justice.gov/archive/ag/speeches/2002/060502agprepared
remarks.htm. And ICE continues to populate the NCIC database
with civil immigration records to the present. See Immigration
& Customs Enforcement, Fact Sheet: Law Enforcement Support
Center (May 29, 2012),
http://www.ice.gov/news/library/factsheets/lesc.htm. Therefore,
contrary to the defendants’ assertion, the NCIC database does
indeed include civil immigration records.
In sum, the deputies violated Santos’s rights under the
Fourth Amendment when they seized her after learning that she
was the subject of a civil immigration warrant and absent ICE’s
express authorization or direction.
31
V.
A.
Even though the deputies violated Santos’s rights under the
Fourth Amendment, the deputies still may be entitled to
qualified immunity if the right was not clearly established at
the time of the seizure.
The doctrine of qualified immunity “balances two important
interests-the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). To that end, qualified immunity protects law
enforcement officers from personal liability for civil damages
stemming from “bad guesses in gray areas and ensures that they
are liable only for transgressing bright lines.” Willingham v.
Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (internal quotation
omitted).
We apply a two-step test to determine whether a municipal
employee is entitled to qualified immunity. First, we decide
“whether the facts alleged or shown, taken in the light most
favorable to the plaintiff, establish that the [government
official’s] actions violated a constitutional right.” Meyers v.
Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013). If we
determine that a violation occurred, we consider whether the
32
constitutional right was “clearly established” at the time of
the government official’s conduct. Id. (noting also that the
Supreme Court “modif[ied] the . . . approach such that lower
courts are no longer required to conduct the analysis in th[is]
sequence”).
As explained above, the deputies violated Santos’s Fourth
Amendment rights when they seized her based on the civil ICE
warrant. See supra Part IV.B. Therefore, the key question is
whether the constitutional right was “clearly established” when
the arrest occurred. We apply an objective test to determine
whether a right is “clearly established,” asking whether “a
reasonable person in the official’s position could have failed
to appreciate that his conduct would violate [the] right[].”
Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991)
(internal quotation omitted).
Because government officials cannot “reasonably be expected
to anticipate subsequent legal developments,” the right must
have been clearly established at the time an official engaged in
a challenged action. Harlow, 457 U.S. at 818. Nonetheless,
there need not have been a judicial decision squarely on all
fours for a government official to be on notice that an action
is unconstitutional. Meyers, 713 F.3d at 734 (noting that this
Court “repeatedly ha[s] held that it is not required that a
right violated already have been recognized by a court in a
33
specific context before such right may be held ‘clearly
established’ for purposes of qualified immunity”); see also Hope
v. Pelzer, 536 U.S. 730, 741 (2002) (stating that “officials can
still be on notice that their conduct violates established law
even in novel factual circumstances”).
For three reasons, we conclude that when the deputies
detained Santos, it was not clearly established that local law
enforcement officers may not detain or arrest an individual
based solely on a suspected or known violation of federal civil
immigration law. First, the Supreme Court did not directly
address the role of state and local officers in enforcement of
federal civil immigration law until Arizona v. United States,
which was decided more than three years after the deputies’
encounter with Santos.
Second, until today, this Court had not established that
local law enforcement officers may not seize individuals for
civil immigration violations. Therefore, no controlling
precedent put the deputies on notice that their actions violated
Santos’s constitutional rights.
And finally, before Arizona v. United States, our Sister
Circuits were split on whether local law enforcement officers
could arrest aliens for civil immigration violations. Compare,
e.g., United States v. Urrieta, 520 F.3d 569, 574 (6th Cir.
2008) (“To justify [the defendant’s] extended detention then,
34
the government must point to specific facts demonstrating that
[the Sheriff’s] Deputy . . . had a reasonable suspicion that
[the defendant] was engaged in some nonimmigration-related
illegal activity.”), with United States v. Vasquez-Alvarez, 176
F.3d 1294, 1296 (10th Cir. 1999) (“[T]his court has held that
state law-enforcement officers have the general authority to
make arrests for violations of federal immigration laws.”). And
“if there are no cases of controlling authority in the
jurisdiction in question, and if other appellate federal courts
have split on the question of whether an asserted right exists,
the right cannot be clearly established for qualified immunity
purposes.” Rogers v. Pendleton, 249 F.3d 279, 288 (4th Cir.
2001).
In sum, even though the deputies unconstitutionally seized
Santos, qualified immunity bars her individual capacity claims
because the right at issue was not clearly established at the
time of the encounter.
B.
Santos further argues that even if qualified immunity
precludes her individual capacity claims, the district court
improperly dismissed her claims against the Frederick County
Board of Commissioners and against Sheriff Jenkins and Deputies
Openshaw and Lynch in their official capacities. Plaintiffs
35
alleging constitutional injuries may bring suits under Section
1983 against municipalities for unconstitutional actions taken
by their agents and employees. Monell v. Dep’t of Social Servs.
of the City of New York, 436 U.S. 658, 691 (1978). Likewise, a
plaintiff may bring a Section 1983 action against governmental
officials in their official or representative capacity. Hafer
v. Melo, 502 U.S. 21, 25 (1991). For purposes of Section 1983,
these official-capacity suits are “treated as suits against the
[municipality].” Id.The Supreme Court has emphasized, however, that municipal
liability under Section 1983 does not amount to respondeat
superior. Monell, 436 U.S. at 691. Consequently, a
municipality is subject to Section 1983 liability only when its
“policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts the [plaintiff’s] injury . . . .” Id. at 694.
The requirement that the allegedly unconstitutional act stems
from an established municipal policy or the actions of a final
policymaker ensures that the municipality is “responsible” for
the alleged violations of a plaintiff’s constitutional rights.
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
Unlike with government officials sued in their individual
capacity, qualified immunity from suit under Section 1983 does
not extend to municipal defendants or government employees sued
36
in their official capacity. Owen v. City of Independence, Mo.,
445 U.S. 622, 650 (1980).
The district court dismissed Santos’s official-capacity
claims and claims against the Frederick County Board of
Commissioners because it concluded that the deputies did not
violate Santos’s Fourth Amendment rights. Santos, 884 F. Supp.
2d at 432. Because we hold that the deputies violated Santos’s
Fourth Amendment rights when they seized her solely on the basis
of the civil ICE warrant and because qualified immunity does not
extend to municipal defendants, this was error.
Having (erroneously) determined that the deputies did not
violate Santos’s constitutional rights, the district court did
not have occasion to address whether the municipal defendants
were “responsible” for the deputies’ conduct. Therefore, on
remand, the district court should determine whether the
deputies’ unconstitutional actions are attributable to an
official policy or custom of the county or the actions of a
final county policymaker.
VI.
In sum, the district court correctly concluded that the
deputies seized Santos when Openshaw gestured for her to remain
seated after the deputies learned of the outstanding civil ICE
removal warrant. But because knowledge that an individual has
37
committed a civil immigration violation does not constitute
reasonable suspicion or probable cause of a criminal infraction,
the district court erred in holding that Santos’s seizure did
not violate the Fourth Amendment.
Nonetheless, the deputies are entitled to qualified
immunity because the right at issue was not clearly established
at the time of the encounter. Qualified immunity does not
extend, however, to municipal defendants, and thus the district
court erred in dismissing Santos’s municipal and official-
capacity claims.
Therefore, we affirm the district court’s decision
regarding Santos’s individual-capacity claims, vacate its
decision regarding her municipal and official-capacity claims,
and remand the case to the district court for further
proceedings in accordance with this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
38