Donna Watts v. Pablo Camacho, et al

Filing

Opinion issued by court as to Appellant Pablo Camacho, et al. Decision: Reversed and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-15383

Date Filed: 02/08/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15383
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-21271-RNS

TROOPER DONNA JANE WATTS,
Plaintiff - Appellee,
versus
CITY OF MIAMI, et al.,
Defendants,
OFFICER PABLO CAMACHO,
OFFICER ROSHAN MILLIAGAN,
OFFICER JESUS PEDRAZA,
OFFICER JAMIE RAMIREZ,
OFFICER DAVID CISERNO,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 8, 2017)
Before HULL, MARCUS, and WILSON, Circuit Judges.

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PER CURIAM:
Defendant-appellants Pablo Camacho, David Cisnero, Roshan Milligan,
Jesus Pedraza, and Jaime Ramirez (“Defendants”) appeal from the district court’s
denial of their motion for summary judgment on the basis of qualified immunity in
favor of Plaintiff-appellee Donna Watts. Watts’s complaint alleged, among other
things, that the Defendants violated the Driver’s Privacy Protection Act (DPPA),
18 U.S.C. §§ 2721–25, by accessing her information in the Driver and Vehicle
Information Database (DAVID) maintained by the Florida Department of Highway
Safety and Motor Vehicles (DHSMV). On appeal, the Defendants argue that the
district court erred in denying them immunity from Watts’s claims because either:
(1) their DAVID accesses were permissible uses enumerated in the DPPA; or, if
not, (2) it was not clearly established that their accesses were not permissible under
the DPPA. After thorough review, we reverse and remand.
We review de novo the district court’s decision on a motion for summary
judgment based on qualified immunity. Terrell v. Smith, 668 F.3d 1244, 1249–50
(11th Cir. 2012). We resolve all issues of material fact in the plaintiff’s favor and
approach the facts from the plaintiff’s perspective. Lee v. Ferraro, 284 F.3d 1188,
1190 (11th Cir. 2002).

“We then answer the legal question of whether the

defendant is entitled to qualified immunity under that version of the facts.” Id.
(quotation and alterations omitted).
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The relevant facts are these. On October 11, 2011, Watts -- a trooper with
the Florida Highway Patrol -- pulled over a uniformed but off-duty City of Miami
police officer driving a marked police car. Watts cited him for reckless driving,
and, during the stop, pulled her gun on the officer and handcuffed him. The
incident was highly publicized and a video of the stop appeared on YouTube.
Soon afterward, Watts began receiving online threats, numerous hang-up telephone
calls on her unlisted home and cellular phones, and other forms of harassment.
Watts contacted the DHSMV to ascertain whether law enforcement officers had
accessed her DAVID information, and received a report that over 88 law
enforcement officers, including the Defendants, had indeed accessed her
information.
Following the issuance of that report, which was also provided to the City of
Miami, the City’s Internal Affairs Section began an investigation into the
Defendants’ access of Watts’s information.

As part of the investigation, the

Defendants were interviewed. They all claimed that they performed a DAVID
query as part of their official duties. The officers said that because Watts had
pulled her weapon on a police officer, they wanted to be able to identify her for
their own safety, and so needed to see her DAVID picture. The records show,
however, that the officers scrolled through multiple pages of information after
seeing the Plaintiff’s picture. At the end of the investigation, each of the officers
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was cited for performing an unauthorized search of DAVID which was not for law
enforcement or criminal justice purposes, and was officially reprimanded (although
no punishment issued).
Watts filed a number of civil suits against over 100 defendants for accessing
her personal information through DAVID; this case is the only one of Watts’s
actions that is still pending.

In the course of this case’s proceedings, Watts

stipulated to the dismissal of all other claims and defendants except her DPPA
claims against the Defendants and the City of Miami. All of the parties moved for
summary judgment on these claims, and the district court denied all the motions.
The Defendants timely filed this interlocutory appeal as to the court’s denial of
their motion for summary judgment on the specific ground of qualified immunity.
Qualified immunity “offers complete protection for government officials
sued in their individual capacities as long as their conduct violates no clearly
established statutory or constitutional rights of which a reasonable person would
have known.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009)
(quotation omitted). In order to receive qualified immunity, a defendant “must
first prove that he was acting within the scope of his discretionary authority when
the allegedly wrongful acts occurred.” Courson v. McMillian, 939 F.2d 1479,
1487 (11th Cir. 1991) (quotation omitted). Once the defendant establishes that he
was acting within his discretionary authority, the burden shifts to the plaintiff to
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show that qualified immunity is not appropriate. See id. To ascertain whether an
official is entitled to qualified immunity, we must “evaluate whether Plaintiffs’
allegations, if true, establish a violation of a constitutional or statutory right,” and
if so, whether that right was “clearly established” such that it “provided fair
warning to [the Defendants] that they were violating the law.”

Collier v.

Dickinson, 477 F.3d 1306, 1308, 1311 (11th Cir. 2007) (citing Hope v. Pelzer, 536
U.S. 730, 731 (2002)). Courts may take up these two steps in either order. Brooks
v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015).
When considering whether an official “would have known that his actions
were prohibited by the law at the time he engaged in the conduct in question,”
“[t]he standard is one of objective reasonableness.” Collier, 477 F.3d at 1311. Our
Circuit uses two methods to determine whether a reasonable officer would know
that his conduct violates federal law. The first “looks at the relevant case law at
the time of the violation; the right is clearly established if a concrete factual
context exists so as to make it obvious to a reasonable government actor that his
actions violate federal law.” Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th
Cir. 2011) (quotation and brackets omitted). The second “looks not at case law,
but at the officer’s conduct, and inquires whether that conduct lies so obviously at
the very core of what the [law] prohibits that the unlawfulness of the conduct was

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readily apparent to the officer, notwithstanding the lack of fact-specific case law.”
Id. (quotation and brackets omitted).
It is uncontested that the Defendants in this case were acting within their
discretionary authority as police officers when they accessed Watts’s DAVID
information.

Thus, the burden shifted to Watts to show that they violated a

statutory right -- here, her rights under the DPPA. To establish a violation of the
DPPA, a plaintiff must show “that a defendant (1) knowingly obtained, disclosed
or used personal information, (2) from a motor vehicle record, (3) for a purpose not
permitted.”

Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, &

Stevens, P.A., 525 F.3d 1107, 1111 (11th Cir. 2008). “The plain meaning of the
third factor is that it is only satisfied if [it is] shown that obtainment, disclosure, or
use was not for a purpose enumerated under § 2721(b)”; “the burden [to show this]
is properly upon the plaintiff.” Id. at 1111–12.
In this appeal, the Defendants do not contest that they (1) knowingly
obtained Watts’s personal information (2) from a motor vehicle record. They
argue, however, that Watts failed to show that they obtained her information for an
impermissible purpose.

They also argue that even if their purpose was

impermissible under the DPPA, Watts has failed to show that such
impermissibility was sufficiently established to warrant denying them qualified
immunity.
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As the record shows, the district court concluded that Watts established a
triable issue of fact as to whether the Defendants violated her DPPA rights, but the
court did not specify what the potential impermissible purpose was. The district
court also concluded that the Defendants’ actions were clearly prohibited by the
DPPA based on Circuit precedent that said that “[t]he words of the DPPA alone are
‘specific enough to establish clearly the law applicable to particular conduct and
circumstances and to overcome qualified immunity.’” Collier, 477 F.3d at 1312
(quoting Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002)).
We are compelled to conclude that the district court erred. Collier is not
sufficiently similar to the facts at issue in this case as to constitute “relevant case
law” that put the officers on notice, nor did it lay down a general rule that
violations of the DPPA are always violations of clearly established law. This
Court in Collier addressed a situation in which executive-level DHSMV officials
were selling driver records to third-party mass marketers without the consent of the
drivers. Id. at 1307. We concluded that this was a violation of clearly established
law, because “[t]he language of Sections 2721(b)(11)–(13) unambiguously requires
the consent of individuals before their motor vehicle record information may be
released” for sale to marketers. Id. at 1310–11. This is very different from the
Defendant’s behavior in this case, where the officers obtained information about
Watts for their own use.
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Moreover, Collier does not stand for the principle that all DPPA violations
are so obviously clear that qualified immunity can never protect an official from
suit under the DPPA. Rather, Collier represents the more common sense judgment
that where a violation is readily apparent from the plain language of an act, the
plaintiff need not point to any particular case addressing the obvious import of the
statute. This Court found it clear from the DPPA’s text that consent was required
for information released to marketers. Id. at 1310 (“[T]he protections offered by
the statute are clear and specific.”). But as we’ve said before, “[o]bvious clarity
cases are ‘rare’ and present a ‘narrow exception’ to the general rule of qualified
immunity.” Gilmore v. Hodges, 738 F.3d 266, 279 (11th Cir. 2013) (quotation and
citation omitted). To fall into this category, a prohibition must be so clear that “no
reasonable officer could have believed that [the Defendants’] actions were legal.”
Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002).
It is not obviously clear that an officer obtaining the information for his own
use is not within the permissible use of § 2721(b)(1), “use by any government
agency, including any court or law enforcement agency, in carrying out its
functions,” or of § 2721(b)(14), “any other use specifically authorized under the
law of the State that holds the record, if such use is related to . . . public safety.” To
overcome the qualified immunity defense under this standard, Watts was required
to show that no reasonable officer in the Defendants’ position could have believed
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that he was accessing her DAVID information for a permissible use under the
DPPA.

Watts never made this showing, and the district court, nonetheless,

misapplied Collier to conclude that all DPPA violations are obviously clear, and
did not otherwise address the issue.
On appeal, Watts has only argued that “officer safety” was not the true
purpose of the officers’ DAVID accesses. Importantly, however, she has not
explicitly alleged, much less carried her burden to show, that the Defendants
obtained the information for a purpose clearly not permitted by the DPPA. See
Thomas, 525 F.3d at 1111–12 (A plaintiff must show “that a defendant
(1) knowingly obtained, disclosed or used personal information, (2) from a motor
vehicle record, (3) for a purpose not permitted.” . . . [The plaintiff] argues that the
permissible uses . . . function as statutory exceptions and, therefore, the defendants
should carry the burden of proof to secure entitlement of such exceptions. We
disagree.”); Gilmore, 738 F.3d at 272 (explaining that once the defendant has
established that he was acting within the scope of his discretionary authority, the
burden shifts to the plaintiff to show a violation of a clearly established right).
In short, “[i]n the absence of [any] caselaw to the contrary, [the Defendants],
though [possibly] mistaken, could have reasonably believed” that their DAVID
accesses were permitted uses under the DPPA. Dukes v. Deaton, __ F.3d __, 2017
WL 370854, *5 (11th Cir., Jan. 26, 2017).
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We, therefore, agree with the

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Defendants that Watts did not show that the officers had “clear notice . . . that
[accessing] the information in question violated federal law.” Collier, 477 F.3d at
1311–12. Because Watts failed to show that the officers accessed her information
for a purpose that was clearly not permitted by the DPPA, we need not address
whether their actual purpose was permitted under the DPPA. 1 Accordingly, we
conclude that the district court erred in denying the Defendants qualified
immunity. We reverse and remand to the district court for entry of judgment in
favor of the Defendants.
REVERSED and REMANDED.

1

The only purpose discussed in this case that might have met the ”clearly established” threshold
was harassment of Watts. But as the district court noted in its summary judgment order, Watts
“[did] not link[ ] the harassment to these officers,” and even on appeal, Watts only notes that she
“cannot rule out whether any of the police officers named in this case used the information he or
she accessed from DAVID to further stalk or otherwise threaten or harass her.” Because Watts
does not make the argument that the Defendants’ purpose was to harass her, the Defendants
cannot be denied summary judgment on that ground. See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.”).
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