Roxana Santos v. Frederick County Board of Commissioners

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