Roxana Santos v. Frederick County Board

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:09-cv-02978-BEL. [999167642]. [12-1980]

Roxana Santos v. Frederick County Board

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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)

Dockets.Justia.com

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Argued:

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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.

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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

Enforcement (“ICE”).
of

Maryland

issued

by

Immigration

and

Customs

The U.S. District Court for the District

granted

summary

judgment

to

all

defendants,

concluding that Santos’s initial questioning by the deputies did
not

implicate

immigration

the

Fourth

warrant

Amendment

justified

and

Santos’s

that

the

subsequent

civil

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

with

deputies

Santos.
are

a

basis

to

arrest

or

even

briefly

detain

Nonetheless, we conclude that the individual defendants

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
3

a

civil

immigration

warrant.

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immunity

defendants.

does

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not

extend,

however,

to

municipal

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.
behind

the

On an October morning in 2008, Santos sat on a curb
Common

Market

food

co-op

where she worked as a dishwasher.
waiting for her shift to begin.

in

Frederick,

Maryland,

Santos ate a sandwich while
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

ICE

Office

had

reached

an

agreement

with

under

9

U.S.C. § 1357(g) authorizing certain deputies to assist ICE in
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immigration enforcement efforts, neither Openshaw nor Lynch was
trained or authorized to participate in immigration enforcement.
The

deputies

parked

the

patrol

shipping container opposite Santos.

car

on

the

side

of

the

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.”
398-99.

Lynch

stood

closer

to

the

patrol

J.A. 095,

car.

It

was

immediately apparent to Openshaw that Santos, a native Spanish
speaker,
asked

had

Santos

difficulty
in

English

replied that she was.

communicating
whether

she

in
was

English.

Openshaw

on

and

break,

she

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
seated.

with

Lynch

near

the

patrol

car.

Santos

remained

After a few minutes, Santos recalled that she had her

El Salvadoran national identification card in her purse.
sitting, she showed the card to the deputies.

Still

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
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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.
check,

dispatch

informed

the

After completing the warrant
deputies

that

Santos

outstanding ICE warrant for “immediate deportation.”

had

an

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.
About

twenty

minutes

after

J.A. 136.
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,
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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

Maryland
after

headquarters,

detention

Santos’s

center.

arrest,

ICE

and

then

transferred

Approximately
Senior

her

forty-five

Special

Agent

S.

to

a

minutes
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

Jenkins,
several

the

and

Frederick

individuals

Security.

Lynch,

from

Frederick

County
ICE

Board

and

the

County
of

Sheriff

Charles

Commissioners,

Department

of

and

Homeland

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

7

.

.

.

and

interrogated

her

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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

prejudice

12(b)(6).
the

Section

The

district

court

dismissed

1983

claims

against

the

without

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).
supervisory
Board

of

liability

The district court also bifurcated her
claims

Commissioners,

against

and

Sheriff

Jenkins

those

claims

stayed

resolution of Santos’s claims against the deputies.

and

the

pending

Id. at *4.

Santos filed a second amended complaint against the same
defendants,

asserting

essentially

previously dismissed complaint.

the

same

claims

as

in

the

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

1

whether

the

deputies

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.
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violated Santos’s Fourth Amendment rights.
2d

at

428-29.

In

particular,

the

Santos, 884 F. Supp.

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

adequate justification for the seizure.

Id.

the

deputies

with

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
429-30.

Having

concluded

Santos’s

constitutional

dismissed

Santos’s

claims

that

the

rights,
against

deputies

the

2

district

Sheriff

Frederick County Board of Commissioners.

did

not

Id. at
violate

court

Jenkins

and

also
the

Id. at 432.

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.”).
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moved

for

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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.”
amend. IV.

U.S. Const.

In determining whether a law enforcement officer

unconstitutionally seized an individual, we engage in a multistep 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.
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1991).

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If we conclude the individual was “seized,” we then

determine

whether

the

law

enforcement

justification to support the seizure.
1, 20-22 (1968).

officer

had

adequate

Terry v. Ohio, 392 U.S.

Finally, in Section 1983 cases, even if a

seizure runs afoul of the Fourth Amendment, a plaintiff may not
be

able

to

obtain

qualified immunity.

relief

if

the

defendant

is

entitled

to

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

viewing

and

facts

and

all

reasonable

light most favorable to the nonmoving party.

inferences

in

the

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).

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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

restraint

and,

accordingly, requires differing levels of justification.

See

id.

category

represents

differing

degrees

of

First, “consensual” encounters, the least intrusive type of

police-citizen
therefore,

do

interaction,
not

do

implicate

not

constitute

Fourth

seizures

Amendment

Florida v. Bostick, 501 U.S. 429, 434 (1991).

and,

protections.
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,
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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

questioning in a public place.

an

individual

in

routine

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,

this

Circuit

Gray, 883 F.2d at 323.

indicated

that
13

an

For example, in

individual’s

lack

of

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familiarity with English may be a relevant consideration.
Nevertheless,

“no

one

factor

is

dispositive;”

rather,

Id.
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
Santos

her.”

emphasizes,

Appellant’s
among

other

Br.

at

20.

factors,

In

that

particular,

the

deputies

approached her from opposite sides of the shipping container,
that

she

deputies

was

questioned

wore

uniforms

unfamiliar with English.

by
and

more

than

carried

one

guns,

officer,
and

that

that

the

she

was

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.
at

428.

In

light

of

precedent

and

Santos, 884 F. Supp. 2d
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
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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”

encounter).

Jones,

likely

to

deputies

301

be

well

six

away

feet

as

part

that

“routine”

than

consensual

stood

approximately

(holding

Santos

police-citizen

patrol, rather than singling her out for investigation.
at

across

of

routine

F.3d

came

coerciveness

a

678

They

diminished

“targeted”

from

from

encounters

and

are

more

encounters).

Santos-Deputy

her,

of

Deputy

Openshaw
Lynch

was

The
stood
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
questions

tone
the

in

questioning

deputies

Santos.

posed-asking

her

And
for

the

types

of

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.

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Additionally,
sufficiently

call

none
into

of

Pg: 16 of 38

the

factors

question

our

encounter was consensual at inception.

Santos

highlighted

conclusion

that

the

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).
is

Moreover, absent other indicia that an encounter

nonconsensual,

insufficient.

the

presence

of

two

officers

is

generally

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
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barrier,

on

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its

own,

is

Pg: 17 of 38

insufficient

consensual encounter into a seizure.

to

turn

the

otherwise

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.
Openshaw’s
remain seated.

gesture

Santos, 884 F. Supp. 2d at 428.
“unambiguous[ly]”

directed

Santos

to

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.”
884 F. Supp. 2d at 428.

Indeed, Santos understood as much,

remaining seated after Openshaw’s gesture.
Jones,

562

F.3d

768,

Santos,

774

(6th

Cir.

See United States v.
2009)

(holding

that

individuals were seized for purposes of the Fourth Amendment

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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
claims,
properly
Santos

we

addressing
first

before

us

abandoned

constituted

must

the

the

merits

of

determine

on

appeal.

any

claim

whether
The

that

unauthorized

Santos’s
this

defendants
the

enforcement

constitutional
question
contend

deputies’
of

is
that

actions

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
18

to

enforce

federal

civil

Appeal: 12-1980

Doc: 50

Filed: 08/07/2013

Pg: 19 of 38

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.
the

district

court

held

In the Rule 12(b)(6) dismissal,

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

J.A. 503.

is

an

active

warrant,

they

have

probable

cause.”

But it is not clear from the transcript whether the

reference to “active warrant” refers to a civil warrant or a
19

Appeal: 12-1980

Doc: 50

Filed: 08/07/2013

criminal warrant.

Pg: 20 of 38

And earlier during oral argument, Santos’s

counsel said that local police lack authority to enforce federal
immigration

laws.

unambiguously

Moreover,

argued

that

Santos’s

the

summary

deputies

enforce civil federal immigration law.
authority,

nor

can

we

find

any,

judgment

lacked

brief

authority

to

The defendants cite no

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
immigration

law

enforcement

enforcement

officers

efforts

under

may
8

assist
U.S.C.

§

in

federal

1357(g)(1),

which authorizes the Attorney General to enter into agreements
with local law enforcement agencies that allow specific local
20

Appeal: 12-1980

Doc: 50

officers

to

officers.

Filed: 08/07/2013

perform

the

Pg: 21 of 38

functions

of

federal

immigration

Arizona v. United States, 132 S. Ct. at 2506.

Even

in the absence of a written agreement, local law enforcement
agencies

may

“cooperate

identification,

with

apprehension,

the

Attorney

detention,

or

General
removal

not lawfully present in the United States.”
When

enforcing

1357(g),

local

direction

and

federal
law

immigration

enforcement

supervision

of

law

officers
the

in

of

the

aliens

§ 1357(g)(10)(B).

pursuant
are

to

Section

“subject

Attorney

to

General.”

the
§

1357(g)(3).
Other statutory provisions authorize local law enforcement
officers

to

engage

in

immigration

circumscribed situations.

enforcement

in

more

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
21

also

may

be

able

to

Appeal: 12-1980

Doc: 50

investigate,

Filed: 08/07/2013

detain,

and

Pg: 22 of 38

arrest

individuals

violations of federal immigration law.

for

criminal

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

1296

(10th

Cir.

States
1999).

v.

Vasquez-Alvarez,

And

we

F.3d

indicated

have

176

1294,

that

local

law

enforcement officials may detain or arrest an individual for
criminal violations of federal immigration law without running
afoul

of

the

supported

by

Fourth

Amendment,

reasonable

so

suspicion

authorized by state law.

long

or

state

to

and

address
local

immigration laws.
question open.

seizure

cause

and

is
is

United States v. Guijon-Ortiz, 660

whether

officers

the

probable

F.3d 757, 764 & 764 n.3 (4th Cir. 2011).
occasion

as

federal
from

But we have not had

immigration

enforcing

law

federal

preempts
criminal

And the Supreme Court has expressly left that

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

suspected of civil immigration violations.

arrest

individuals

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

Appeal: 12-1980

“[i]f

Doc: 50

the

Filed: 08/07/2013

police

stop

possible

removability,

absent.”

Id. at 2505.

Pg: 23 of 38

someone
the

based

usual

on

nothing

predicate

more

for

than

arrest

is

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

removable from the United States.’”
Stat. Ann.
Lower

that

makes

[him]

Id. (quoting Ariz. Rev.

§ 13-3883(A)(5)).
federal

courts

correctly-interpreted

have

Arizona

v.

universally-and
United

States

we

as

think

precluding

local law enforcement officers from arresting individuals solely
based on known or suspected civil immigration violations.
Melendres

v.

Arpaio,

695

F.3d

990,

1001

(9th

Cir.

See

2012);

Melendres v. Arpaio, No. PHX-CV-07-02513-GMS, 2013 WL 2297173,
at

*60-63

(D.

Indianapolis,

Ariz.

No.

May

24,

2013);

1:11-cv-00708-SEB-MJD,

Buquer
2013

WL

v.

City

of

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

Appeal: 12-1980

Doc: 50

Filed: 08/07/2013

immigration

violation,

enforcement

officer

by

Pg: 24 of 38

itself,

probable

does

cause

to

individual is engaged in criminal activity.
at

1000-01.

Additionally,

allowing

not

give

law

that

believe

a

the

Melendres, 695 F.3d

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.
readily

Nonetheless, the Court’s logic regarding arrests

extends

particular,

to

to

brief

justify

an

investigatory

detentions.

investigatory

detention,

In
a

law

enforcement officer must have reasonable, articulable suspicion
that “criminal activity may be afoot.”
And

because

offenses,

civil

suspicion

immigration
or

Terry, 392 U.S. at 30.

violations

knowledge

that

are
an

not

criminal

individual

has

committed a civil immigration violation “alone does not give

24

Appeal: 12-1980

rise

Doc: 50

to

Filed: 08/07/2013

an

inference

that

Pg: 25 of 38

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.
Part

III.C.

detaining

At

Santos

that
was

time,
the

the

civil

deputies’
ICE

See supra

only

warrant.

basis
Yet

as

for
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.
thus

lacked

authority

to

enforce

civil

immigration

law

They
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
deputies

find

unpersuasive

lawfully

detained

the

defendants’

and
25

arrested

arguments

Santos.

that

the

First,

the

Appeal: 12-1980

Doc: 50

defendants

Filed: 08/07/2013

contend

that

the

Pg: 26 of 38

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

decision

of

1357(g)(10)]
state

removable

absent

from

Federal

the

Arizona

v.

would

officers

any

to

request,

States

the

arrest

an

alien

approval,

or

other

Ct.

at

Government.”

United

incorporate

132

makes

S.

clear

that

unilateral
for

being

instruction

2507.
under

Thus,
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.
whether

ICE

directed

Although there may be no dispute as to
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

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Doc: 50

Filed: 08/07/2013

Pg: 27 of 38

had learned of the outstanding ICE warrant but before dispatch
confirmed with ICE that the warrant was active.
III.C.

See supra Part

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

within

their

at

that

knowledge

moment
and

the

of

facts

which

and

they

circumstances

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
27

Br.

at

40.

The

defendants’

Appeal: 12-1980

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Filed: 08/07/2013

Pg: 28 of 38

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

arrest

county
the

sheriff’s

defendant

deputy

for

had

“unlawful

reasonable
.

.

.

suspicion

presence

in

to
the

country” when, during the course of a lawful traffic stop, the
deputy

learned

fraudulent

that

green

the

had

660

card.

defendant

at

F.3d

presented
765.

him

with

Guijon-Ortiz

a
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.
in

Guijon-Ortiz

the

deputy

detained

and

Further,

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

traffic

stop,

identification.

the

the

Fourth

officer

Amendment
asked

492 F.3d at 496.

when,

passengers

during
in

a

a

lawful

van

for

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

Appeal: 12-1980

the

Doc: 50

van

Filed: 08/07/2013

pending

Therefore,

like

arrival

Pg: 29 of 38

of

ICE

Guijon-Ortiz,

distinguishable

because

the

agents.

Id.

Soriano-Jarquin
police

officer

at
is

496-97.
readily

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

evidence justifying a seizure.
F.3d

328,

337

(4th

Cir.

2008)

responsible

for

identifying

United States v. Branch, 537
(“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

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Filed: 08/07/2013

Pg: 30 of 38

articulable facts’ that demonstrate at least ‘a minimal level of
objective justification’ for the belief that criminal activity
is

afoot.”

(quoting

(2000))).

Illinois

Consequently,

v.

when

Wardlow,

528

119,

123

evidence

affirmative

U.S.

does

not

justify a seizure, the seizure violates the Fourth Amendment.
Therefore,
whether

it

the

violation

was

the

warrant

before

deputies’

was

for

seizing

a

responsibility

criminal

Santos.

And

or

to

civil

because

determine

immigration

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

Information

it

Center

was

included

(“NCIC”)

in

the

National

database

and

“the

Crime

enabling

legislation for the NCIC provides only that crime records can be
entered into the database.”
U.S.C. § 534(a)).

Appellee’s Br. at 48 (citing 28

We agree with the defendants that there is a

good argument that Section 534(a)(1), which directs the Attorney
General

to

“acquire,

identification,
records,”

does

criminal
not

collect,

classify,

identification,

authorize

records in the NCIC database.

inclusion

and

crime,
of

civil

preserve
and

other

immigration

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,
30

and

legislative

history

Appeal: 12-1980

Doc: 50

Filed: 08/07/2013

Pg: 31 of 38

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.
&

Customs

Center

Enforcement,

Fact

Sheet:

(May

Law

See Immigration

Enforcement

29,

http://www.ice.gov/news/library/factsheets/lesc.htm.

Support
2012),

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

Appeal: 12-1980

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Filed: 08/07/2013

Pg: 32 of 38

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
they

exercise

need

to

power

hold

public

irresponsibly

officials
and

the

accountable
need

to

when

shield

officials from harassment, distraction, and liability when they
perform their duties reasonably.”
223, 231 (2009).

Pearson v. Callahan, 555 U.S.

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

official’s] actions violated a constitutional right.”

[government
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

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Filed: 08/07/2013

Pg: 33 of 38

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.
whether

a

right

is

We apply an objective test to determine
“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

Appeal: 12-1980

Doc: 50

specific

Filed: 08/07/2013

context

before

Pg: 34 of 38

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.
e.g.,

Compare,

United States v. Urrieta, 520 F.3d 569, 574 (6th Cir.

2008) (“To justify [the defendant’s] extended detention then,
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Pg: 35 of 38

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

the

there

are

no

cases

of

controlling

authority

in

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
precludes
improperly

further

her

argues

individual

dismissed

her

that

even

capacity
claims

if

claims,

against

qualified
the

the

immunity

district

Frederick

court
County

Board of Commissioners and against Sheriff Jenkins and Deputies
Openshaw and Lynch in their official capacities.
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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.
v. Melo, 502 U.S. 21, 25 (1991).

Hafer

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
superior.

under

Section

Monell,

436

1983

does

U.S.

at

not

amount

691.

to

respondeat

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
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in their official capacity.

Pg: 37 of 38

Owen v. City of Independence, Mo.,

445 U.S. 622, 650 (1980).
The
claims

district
and

court

claims

dismissed

against

the

Santos’s
Frederick

official-capacity
County

Board

of

Commissioners because it concluded that the deputies did not
violate Santos’s Fourth Amendment rights.
2d at 432.

Santos, 884 F. Supp.

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.
remand,
deputies’

the

district

court

unconstitutional

should

actions

determine
are

Therefore, on
whether

attributable

to

the
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
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committed

a

Filed: 08/07/2013

civil

immigration

Pg: 38 of 38

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-

court’s

decision

capacity claims.
Therefore,
regarding

we

Santos’s

affirm

the

district

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