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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 13-14092
_________________________
D.C. Docket No. 6:11-cv-01740-CEH-KRS
BRIAN BERRY,
JERMARIO ANDERSON,
REGINALD TRAMMON,
EDWYN DURANT,
Plaintiffs-Appellees,
versus
TRAVIS LESLIE,
Deputy,
KEITH VIDLER,
Corporal, in his individual Capacity,
Defendants-Appellants.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
__________________________
(September 16, 2014)
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Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
ROSENBAUM, Circuit Judge:
It was a scene right out of a Hollywood movie. On August 21, 2010, after
more than a month of planning, teams from the Orange County Sheriff’s Office
descended on multiple target locations. They blocked the entrances and exits to
the parking lots so no one could leave and no one could enter. With some team
members dressed in ballistic vests and masks, and with guns drawn, the deputies
rushed into their target destinations, handcuffed the stunned occupants—and
demanded to see their barbers’ licenses. The Orange County Sheriff’s Office was
providing muscle for the Florida Department of Business and Professional
Regulation’s administrative inspection of barbershops to discover licensing
violations.
We first held nineteen years ago that conducting a run-of-the-mill
administrative inspection as though it is a criminal raid, when no indication exists
that safety will be threatened by the inspection, violates clearly established Fourth
Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We
reaffirmed that principle in 2007 when we held that other deputies of the very same
Orange County Sheriff’s Office who participated in a similar warrantless criminal
raid under the guise of executing an administrative inspection were not entitled to
qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). Today,
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we repeat that same message once again. We hope that the third time will be the
charm.
I.
The instant case arises from an unannounced, warrantless inspection of a
barbershop by officers of the Orange County Sheriff’s Office (“OCSO”) and
representatives from the Florida Department of Business and Professional
Regulation (“DBPR”). On August 21, 2010, OCSO and the DBPR conducted
planned sweeps of several barbershops, located in predominantly Hispanic and
African-American neighborhoods, with the purported intent of discovering
violations of state licensing laws.
Plaintiff-Appellee Brian Berry is the sole owner of Strictly Skillz
Barbershop, one of the targets of the operation. Berry is a licensed barber and has
been operating Strictly Skillz since 2007. Plaintiffs-Appellees Edwyn Durant,
Reginald Trammon, and Jermario Anderson are licensed barbers who rent
barbering chairs at Strictly Skillz for a weekly rental fee. All four plaintiffs, who
were subject to OCSO and the DBPR’s “administrative inspection” of Strictly
Skillz, sued several OCSO officers, including Appellants Corporal Keith Vidler
and Deputy Travis Leslie, alleging that the officers violated their Fourth
Amendment rights to be free from unreasonable searches and seizures.
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II.
The DBPR is tasked with regulating and enforcing statutes and rules
associated with professional licenses. Barbershops are subject to this regulatory
framework and are governed by § 476.184, Fla. Stat., and its implementing rules.
Under the rules, DBPR inspectors are authorized to conduct biennial inspections to
ensure that barbershops are in compliance with state licensing and sanitation laws.
But the DBPR is not empowered to take law-enforcement action and must rely on
local law enforcement to address violations of state law.
The impetus for the sting operation stemmed from a chance encounter
between DBPR inspector Amanda Fields and Corporal Vidler, during which Fields
complained of some of the difficulties that she had encountered in conducting her
barbershop inspections. Upon discovering that barbering without a license is a
second-degree misdemeanor under Florida law, see Fla. Stat. § 476.194,1 Vidler
1
Section 476.194, Fla. Stat., provides,
(1) It is unlawful for any person to:
(a) Engage in the practice of barbering without an active
license as a barber issued pursuant to the provisions of this
act by the department.
(b) Hire or employ any person to engage in the practice of
barbering unless such person holds a valid license as a
barber.
(c) Obtain or attempt to obtain a license for money other
than the required fee or any other thing of value or by
fraudulent misrepresentations.
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became intrigued by the possibility of a collaboration between the DBPR and
OCSO and spent over a month, together with other OCSO officers and DBPR
representatives, developing a plan for a joint sweep operation of various
barbershops and salons. The barbershops chosen for the operation were apparently
selected because they or barbers within them had on previous occasions failed to
cooperate with DBPR inspectors.2 All of the targeted barbershops were
businesses that serviced primarily African-American and Hispanic clientele.
Vidler prepared the OCSO Operations Plan, which provided that the sweeps
would be executed by two teams, each consisting of a supervisor, a narcotics agent,
a plain-clothes deputy, three uniformed deputies, and two DBPR agents. Although
the stated goal of the operation was “to assist the DBPR in the detention and
(d) Own, operate, maintain, open, establish, conduct, or
have charge of, either alone or with another person or
persons, a barbershop:
1. Which is not licensed under the provisions of this
chapter; or
2. In which a person not licensed as a barber is
permitted to perform services.
(e) Use or attempt to use a license to practice barbering
when said license is suspended or revoked.
(2) Any person who violates any provision of this section is guilty of a misdemeanor of
the second degree, punishable as provided in s. 775.082 or s. 775.083.
2
Strictly Skillz was included on this list because during two routine inspections in 2007,
a DBPR inspector reported that barbers had refused to produce their licenses when asked to do
so. It is not clear from the record whether these incidents occurred before or after Berry
purchased the business.
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identification of unlicensed barbers and hair stylist[s],” the plan also contemplated
other law-enforcement objectives. For example, the plan provided that any
contraband discovered during the inspection had to be turned over to OCSO for
prosecution and that the officers, with the assistance of narcotics agents, would
identify and handle any narcotics, gather intelligence, and interview potential
confidential informants.
On August 19, 2010, two days before the sweep, Inspector Fields and
another DBPR inspector conducted walkthroughs of six of the target locations,
including Strictly Skillz. Though the purpose of the walkthrough was to gather
information for the operation, the inspectors did so under the guise of performing a
routine inspection, verifying that the barbers’ licenses were current and valid and
inspecting the barbers’ workstations. During the inspection of Strictly Skillz, the
barbers were cooperative, no violations were found, and no citations were issued.
Inspector Fields even commended Berry on the tremendous progress he had made
in the shop.
Despite the fact that just two days earlier Strictly Skillz had passed
inspection without any problems whatsoever and that the DBPR is permitted to
conduct inspections only once every two years, on August 21, 2010, OCSO and the
DBPR conducted a second inspection as part of the sting operation. The record,
viewed in the light most favorable to the plaintiffs, reveals that the sweep of
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Strictly Skillz occurred as follows: Two plain clothes officers initially entered the
barbershop to observe any potential violations. Five or six barbers were on duty at
the time, and the shop was filled with anywhere from ten to twenty-five waiting
customers. As the first day of the school year was approaching, several of the
customers in the shop were children.
Shortly after the arrival of the plain-clothes officers, a “whole bunch” of
police cars pulled into the shopping plaza and completely blocked off the parking
lot, preventing all ingress and egress. Officers then “rushed into” Strictly Skillz
“like [a] SWAT team.” Based on the plaintiffs’ collective recollection, it appears
that somewhere between eight and ten officers, including narcotics agents,
descended upon the barbershop, along with a DBPR inspector. Some of the
officers donned masks and bulletproof vests and had their guns drawn. The
officers immediately ordered all of the customers to exit the shop and announced
that the shop was “closed down indefinitely.”
Plaintiffs Trammon, Anderson, and Durant were in the barbershop when the
officers stormed in. The officers directed Anderson and Durant to present their
driver’s licenses for identification, and Inspector Fields instructed Anderson to
retrieve his barbering license from his work station. Trammon and Anderson, who
were in the process of cutting customers’ hair, were then immediately patted down
and handcuffed with plastic zip ties. Anderson was handcuffed by a masked
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officer, and Trammon was restrained by two deputies who were not wearing
masks. Sometime after Trammon was handcuffed, he informed the officers that he
was in possession of a concealed firearm for which he had a valid concealed-
weapons permit. The officers patted him down to retrieve the weapon and located
the permit without incident.
Vidler, who was the supervisor on the scene, admits that he ordered deputies
to detain Trammon. When Trammon argued to one of the officers that he had done
nothing wrong, the officer responded, “It’s a pretty big book, I’m pretty sure I can
find something in here to take you to jail for.” Durant, though told to “sit down
and shut up,” was not handcuffed and was eventually permitted to leave the shop.
Shortly thereafter, Berry, who had been behind the shop in the parking lot
when the officers initially entered, walked into Strictly Skillz through the back
entrance. Upon seeing that Trammon and Anderson were in handcuffs and being
patted down by officers, Berry made his way to the front of the shop, identified
himself as the owner, and demanded to know what was going on and why
Trammon and Anderson were in handcuffs. Deputy Leslie then immediately
placed Berry into metal handcuffs and patted him down. Though angry, Berry did
not physically resist and complied with the officers’ instructions.
While Trammon, Anderson, and Berry were restrained, Inspector Fields and
the OCSO officers conducted their “inspection” of the barbershop. OCSO officers
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called in the barbers’ driver’s license information to ascertain whether any of them
had outstanding warrants, and Inspector Fields, for the second time in two days,
checked the barbering licenses to ensure that they were still valid and current. The
officers, along with Inspector Fields, then searched the premises by inspecting each
of the barbers’ workstations and looking through their drawers. OCSO officers
also went to the back of the shop without Inspector Fields and searched through an
unlocked storage room where no barbering services were rendered.
At the conclusion of the inspection, it was determined that all of the barbers
had valid licenses and that the barbershop was in compliance with all safety and
sanitation rules. No criminal violations were discovered, and Berry, Anderson, and
Trammon were released from their handcuffs. The entire inspection lasted
approximately one hour. After the officers and Inspector Fields left, the
barbershop resumed operations.3
III.
Following the search of Strictly Skillz, the plaintiffs filed the present suit
against a number of the officers involved, including Vidler and Leslie, alleging,
among other things, that the barbershop inspection constituted an unlawful search
in violation of the plaintiffs’ Fourth Amendment rights. Vidler and Leslie each
moved for summary judgment on qualified-immunity grounds. The district court
3
After the August 21 sweep, OCSO and the DBPR conducted a second barbershop sting
on September 17, 2010, targeting two barbershops and a hair and nail salon.
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denied summary judgment as to the plaintiffs’ Fourth Amendment claims, finding
that although OCSO and the DBPR validly invoked their statutory authority to
inspect Strictly Skillz to determine whether barbers were operating without a
license, the law regarding administrative searches was clearly established, and a
genuine issue of material fact existed as to whether the administrative search was
appropriately limited in scope. The district court also found that the plaintiffs had
sufficiently established a causal link between the officers’ involvement and the
alleged constitutional violations. Vidler and Leslie now appeal the denial of
qualified immunity.
IV.
We review de novo a district court’s denial of summary judgment based on
qualified immunity, applying the same legal standards that governed the district
court. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013)
(citing Edwards v. Shanley, 666 F.3d 1289, 1292 (11th Cir. 2012)). Summary
judgment is appropriate when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In making this determination, the Court must view the facts and make all
reasonable inferences in the light most favorable to the non-moving party.
Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir.
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2004) (citing Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996)). Thus, we
accept the plaintiffs’ version of the facts, as supported by evidence in the record.
V.
The sole question that we address on this appeal is whether the district court
correctly concluded that Vidler and Leslie are not entitled to qualified immunity on
summary judgment. Qualified immunity protects government officials performing
discretionary functions from liability “unless their conduct violates clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal
quotation marks omitted). This doctrine protects “all but the plainly incompetent
or one who is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002) (internal quotation marks omitted).
To obtain qualified immunity, a defendant must first demonstrate that he
was acting within his discretionary authority when the alleged violation occurred.
Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009). Here, the parties do not
dispute that Vidler and Leslie were acting within the scope of their discretionary
duties.
Therefore, the burden shifts to the plaintiffs “‘to show that the grant of
qualified immunity is inappropriate.’” Id. (quoting McCullough v. Antolini, 559
F.3d 1201, 1205 (11th Cir. 2009)). To do this, the plaintiffs must establish both
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that a violation of their constitutional rights occurred and that the violated rights
were “clearly established” at the time of the incident in question. Franklin v.
Curry, 738 F.3d 1246, 1249 (11th Cir. 2013) (per curiam) (citing Keating v. City of
Miami, 598 F.3d 753, 762 (11th Cir. 2010). The plaintiffs must also show a causal
nexus between the defendants’ acts or omissions and the alleged constitutional
violations. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (per curiam)
(citing Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982)). As explained
below, we find that the district court did not err in concluding that the plaintiffs
satisfied all of these showings.
A.
Berry, Anderson, Trammon, and Durant assert that Vidler and Leslie
violated their Fourth Amendment rights by subjecting them to an unreasonable
search and seizure. The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. Its protections apply to
“commercial premises, as well as to private homes.” New York v. Burger, 482
U.S. 691, 699, 107 S. Ct. 2636, 2642 (1987). In general, the Fourth Amendment
requires a warrant supported by probable cause to effectuate a constitutional
search. See id. at 702, 107 S. Ct. at 2643. Indeed, this Court has explained, “The
basic premise of search and seizure doctrine is that searches undertaken without a
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warrant issued upon probable cause are ‘per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated
exceptions.’” Swint v. City of Wadley, 51 F.3d 988, 995 (11th Cir. 1995) (quoting
United States v. Alexander, 835 F.2d 1406, 1408 (11th Cir. 1988)).
One of those limited exceptions involves administrative inspections of
“closely regulated” industries. See Burger, 482 U.S. at 702, 107 S. Ct. at 2643.
Because an owner or operator of commercial property “has a reduced expectation
of privacy” in this context, the standard for what may be reasonable under the
Fourth Amendment is correspondingly broader. See id. at 702−03, 107 S. Ct. at
2643–44.
To fall within this exception, a warrantless inspection must satisfy three
criteria: (1) “a ‘substantial’ government interest [must] inform[] the regulatory
scheme pursuant to which the inspection is made,” id. at 702, 107 S. Ct. at 2644;
(2) the inspection “must be necessary to further [the] regulatory scheme,” id.
(alteration in original) (internal quotation marks omitted); and (3) “the statute’s
inspection program, in terms of the certainty and regularity of its application,
[must] provid[e] a constitutionally adequate substitute for a warrant[,]” id. at 703,
107 S. Ct. at 2644 (alterations in original) (internal quotation marks omitted). The
regulatory “statute must [also] be sufficiently comprehensive and defined” such
that it “limits the discretion of inspecting officers.” United States v. Steed, 548
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F.3d 961, 968, 973 (11th Cir. 2008) (per curiam). “‘Where a statute authorizes the
inspection but makes no rules governing the procedures that inspectors must
follow, the Fourth Amendment and its various restrictive rules apply.’” Bruce v.
Beary, 498 F.3d 1232, 1240 (quoting Colonnade Catering Corp. v. United States,
397 U.S. 72, 77, 90 S. Ct. 774 (1970)).
But even when the criteria set forth above are met, to satisfy the Fourth
Amendment, an administrative inspection must be “appropriately limited” in both
scope and execution and may not serve as a backdoor for undertaking a warrantless
search unsupported by probable cause. Bruce, 498 F.3d at 1239−40 (citations
omitted). Above all, such inspections may never circumvent the Fourth
Amendment’s requirement for reasonableness. See id. at 1244 (“As with any
search, then, the scope and execution of an administrative inspection must be
reasonable in order to be constitutional.”). In this regard, “an administrative
screening search must be as limited in its intrusiveness as is consistent with
satisfaction of the administrative need that justifies it.” Id. at 1248 (citation and
internal quotation marks omitted).
As detailed earlier, the regulatory framework for barbershop inspections in
Florida is embodied in Fla. Stat. § 476.184 and its implementing rules. In
particular, § 476.184 requires all barbershops to have a license issued by the DBPR
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and directs the Florida Barbers’ Board 4 to “adopt rules governing the operation and
periodic inspection of barbershops licensed” in Florida. Rule 61G3-19.015(1), Fla.
Admin. Code, in turn, provides that the DBPR may conduct inspections biennially
on a “random, unannounced basis.” 5 The regulatory framework, which sets forth
who may conduct such inspections, notifies barbers that only the DBPR is so
authorized. See Burger, 482 U.S. at 711, 107 S. Ct. at 2648 (finding that the
statute at issue in that case provided a “constitutionally adequate substitute for a
warrant,” in part because “it notifie[d] the operator as to who [was] authorized to
conduct an inspection”). In this case, no one disputes that the DBPR possesses
statutory authority to conduct warrantless inspections of barbershops, nor do the
parties assert that the statute authorizing such inspections is constitutionally
impermissible.
Instead, the plaintiffs contend that the search of Strictly Skillz, which they
allege was undertaken with an inordinate display of force, failed to conform to the
Fourth Amendment’s requirement for reasonableness. Because we have twice
4
Section 476.184, Fla. Stat., authorizes the creation of the Barbers’ Board within the
Department of Business and Professional Regulation.
5
Rule 61G3-19.015(1), Fla. Admin. Code, reads, in its entirety,
Inspections conducted by the Department of Business and
Professional Regulation of barbershops to determine whether such
barbershops are in compliance with the applicable provisions of
Chapter 476, [Fla. Stat.], and the rules promulgated thereunder
shall be conducted biennially, effective July 1, 2010, on a random
unannounced basis, unless otherwise practicable.
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held, on facts disturbingly similar to those presented here, that a criminal raid
executed under the guise of an administrative inspection is constitutionally
unreasonable, we agree.
We first undertook this analysis in Swint v. City of Wadley, where we
reviewed the constitutionality of two law-enforcement raids on a nightclub. The
raids were executed with the aid of SWAT team members, several of the officers
pointed their weapons at patrons, and the club patrons and employees were
searched and detained for over an hour and a half. Swint, 51 F.3d at 993. Based
on these facts, we rejected the officers’ contention that the searches were valid
administrative inspections, specifically noting that the “massive show of force and
excessive intrusion” displayed during the raids far exceeded that of previous
administrative inspections of the club. Id. at 999. We also emphasized that no
reasonable officer in the defendants’ position could have believed that the raids
were lawful, administrative searches. Id.
More recently, in Bruce v. Beary, this Court again detailed the
constitutionally permissible scope of administration inspections. Bruce, 498 F.3d
at 1232. There, officers of the Orange County Sheriff’s Office—the same
organization involved in the barbershop sweeps—conducted a raid on an auto-
body repair shop. See id. at 1236. The search involved a group of twenty officers
who surrounded the premises and blocked all of the exits. Id. Some of the officers
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were dressed in SWAT uniforms with ballistic vests. Id. The officers entered the
shop with guns drawn, ordering all of the employees to line up along a fence. Id.
Then the officers patted down and searched the employees. Id. Under these
circumstances, we held that the search, which was more akin to a criminal raid
than a routine inspection, exceeded the bounds of the Fourth Amendment. See id.
at 1245. As the inspection of books and records “does not require exits to be
blocked, an automatic shotgun to be stuck into an employee’s back, employees to
be lined up along a fence and patted down and deprived of their identification,” we
concluded that the search far surpassed its statutory authorization and was
constitutionally unreasonable. Id.
The facts of this case, which bear striking similarities to those described
above, cannot escape the tight grasp of Swint and Bruce. Unlike previous
inspections of Strictly Skillz, which were all conducted by a single DBPR
inspector without the aid of law enforcement, the August 21 search was executed
with a tremendous and disproportionate show of force, and no evidence exists that
such force was justified. Despite the fact that neither OCSO nor the DBPR had
any reason to believe that the inspection of Strictly Skillz posed a threat to officer
safety, the record indicates that several OCSO officers entered the barbershop
wearing masks and bulletproof vests, and with guns drawn; surrounded the
building and blocked all of the exits; forced all of the children and other customers
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to leave; announced that the business was “closed down indefinitely”; and
handcuffed and conducted pat-down searches of the employees while the officers
searched the premises. Such a search, which bears no resemblance to a routine
inspection for barbering licenses, is certainly not reasonable in scope and
execution. Rather, “[i]t is the conduct of officers conducting a raid.” Bruce, 498
F.3d at 1245.6
The show of force and search were all the more unreasonable in view of the
fact that DBPR inspectors visited Strictly Skillz a mere two days before the search
and had already determined that the barbershop and its employees were in
compliance with state regulations. Thus, the subsequent sting operation at Strictly
Skillz, the very purpose of which was to check for licensing violations, was
gratuitous at best. Moreover, as the DBPR’s implementing rules contemplate only
biennial inspections, see Fla. Admin. Code 61G3-19.015, and no violation
6
To be clear, our basis for concluding that the search of Strictly Skillz was
unconstitutional does not rest on the existence of any pretext on the part of OCSO and the
DBPR. Indeed, we have previously recognized that administrative searches are not rendered
invalid because they are accompanied by some degree of suspicion, see Bruce, 498 F.3d at 1242,
and the Supreme Court has similarly noted that suspicion of criminal activity will not defeat an
otherwise permissible administrative search, see United States v. Villamonte-Marquez, 462 U.S.
579, 584 n.3, 103 S. Ct. 2573, 2577 n.3 (1983)). Accordingly, we do not consider whether the
sting operation was pretextual; rather, our decision is based solely on our determination that the
manner in which the so-called inspection was executed far exceeded the bounds of
reasonableness under the Fourth Amendment. See Bruce, 498 F.3d at 1250 (Carnes, J.,
concurring) (“There was a Fourth Amendment violation in this case because the scope of the law
enforcement intrusion exceeded that which is permissible during an administrative search alone.
What happened in this case was more of a full scale raid and the kind of prolonged, top to bottom
search that requires a warrant than it was an administrative search to determine compliance with
laws applicable to a closely regulated business.”).
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warranting a follow-up inspection had occurred, the second inspection also
exceeded the scope of the DBPR’s statutory authority.
Not only that, but the statute authorizing administrative inspections of
barbershops vests authority to conduct the inspections in the DBPR alone. See Fla.
Stat. § 476.184; Fla. Admin. Code 61G3-19.015. While law enforcement is
certainly permitted to accompany DBPR inspectors during their inspections to
provide any needed assistance and to arrest individuals whom the DBPR’s
inspections determine to be in violation of the law, the administrative framework
does not bestow upon police officers the authority to themselves conduct the
barbershop inspections. Despite this fact, OCSO officers did exactly that and
more; they themselves opened drawers in barbers’ workstations and searched a
storage closet in the back of Strictly Skillz.
Because the facts of this case—when viewed in the light most favorable to
the plaintiffs—adequately establish that the “inspection” of Strictly Skillz
amounted to an unconstitutional search and that the unconstitutionality of such a
search was clearly established at the time that the search was executed, the
plaintiffs have met their burden, and the district court properly determined that
qualified immunity is inappropriate at this juncture.
B.
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In affirming the denial of Vidler and Leslie’s qualified-immunity defense,
we do not depart from the long-standing principle that individual liability under §
1983 must be premised on each defendant’s participation in the plaintiff’s
constitutional injury. Indeed, it is well established that in order to prevail on a §
1983 claim, the plaintiff must demonstrate an “affirmative causal connection”
between the official and the alleged deprivation. See Zatler, 802 F.2d at 401.
Moreover, we recognize that each defendant is entitled to an independent analysis
of the applicability of the qualified-immunity doctrine to his actions.
To establish the requisite causal link, a plaintiff must show that the official
was personally involved in the acts that resulted in the constitutional deprivation.
Zatler, 802 F.2d at 401 (citing Ancata v. Prison Health Servs., Inc., 769 F.2d 700,
706 (11th Cir. 1985)). “[T]he inquiry into causation must be a directed one,
focusing on the duties and responsibilities of each of the individual defendants
whose acts or omissions are alleged to have resulted in a constitutional
deprivation.” Williams, 689 F.2d at 1381. But this does not mean that a plaintiff
must catalog each and every specific action in which a defendant engaged if that
defendant was integrally involved in what was, from the outset, clearly an
unreasonable search in violation of the plaintiff’s Fourth Amendment rights. See
Swint, 51 F.3d at 994 (where the defendants “personally participated” in an
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“inspection” conducted like a criminal raid, they were not entitled to qualified
immunity).
Vidler and Leslie argue that the district court did not adequately identify
their personal involvement in the plaintiffs’ constitutional injuries for purposes of
qualified immunity. We disagree.
The record clearly supports a finding that Vidler and Leslie were both active
and full participants in the unconstitutional intrusion, which was unconstitutional
from the moment that OCSO burst into Strictly Skillz in raid mode for the
ostensible purpose of helping DBPR review Strictly Skillz’s barbers’ licenses that
it had just inspected two days earlier. Vidler was the catalyst for the entire
operation and was primarily responsible for its planning and organization. He was
also present during the “inspection” and was the supervising officer on the scene.
As for Leslie, it is undisputed that he placed one of the plaintiffs in handcuffs and
helped to execute the unconstitutional search of the shop and barbering stations.
These alleged acts sufficiently demonstrate both Vidler and Leslie’s core
participation in the warrantless search of Strictly Skillz and, if proven, violated the
plaintiffs’ Fourth Amendment right to be free from unreasonable searches.
Nor, as the dissent suggests, does declining to reverse the district court’s
denial of qualified immunity with respect to Trammon, Durant, and Anderson’s
claims against Leslie somehow “bend the law to resolve this appeal with a feel-
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good ending from a box-office hit.” First, under the facts viewed in the light most
favorable to the plaintiffs, the only “hit” that happened in this case was on Strictly
Skillz. Second, we highly doubt that the plaintiffs felt “good” when Vidler, Leslie,
and the rest of the OCSO officers invaded their place of business with mask-and-
bullet-proof-vest-donning officers with guns drawn, kicked their customers out on
one of the busiest days of the year and advised customers that Strictly Skillz was
“closed down indefinitely,” and handcuffed the plaintiffs in the very spaces they
rented.
And third, as for the law, we agree with our dissenting brother that judges
should not “bend the law” to make it fit their personal views. That is why we must
affirm the district court’s denial of qualified immunity to Officer Leslie with
regard to the claims of Trammon, Durant, and Anderson. Quite simply, binding
precedent requires it. Indeed, it is difficult to imagine a straighter application of
binding precedent than Swint to the facts of this case. In Swint, 30 to 40 officers
conducted “raids” of a nightclub under the guise of performing “administrative
searches.” 51 F.3d at 993. The plaintiffs in that case included Swint and Spradley,
who owned the club; James, who was a club employee who was present during
both raids; and Lewis, who was a club patron present only for the second raid.
They sued three individual defendants: Freddie Morgan, the police chief;
Dendinger, a police officer; and James C. Morgan, the sheriff.
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This Court described the raids at issue in that case as follows:
[In the first raid,] [t]he Task Force officers pointed their
weapons at plaintiffs Spradley and James and others who
were present. Participants in the raid searched the
Club’s cash register and door receipts, and some currency
was confiscated from the door receipts. Persons inside
the Club were prohibited from moving or leaving until
the raid, which lasted one to one and one-half hours, was
over. Those present were not allowed to go to the
restroom. When one man asked for permission,
[defendant] Officer Dendinger replied, “Shut up, or I’ll
shut you up myself.” When plaintiff James told
[defendant] Chief Morgan that she was so scared that she
had to go to the restroom, he said no. . . .
...
During this second raid, law enforcement officials
chambered rounds of ammunition into their weapons,
pointed them, and ordered persons in the Club to get
down on the floor. Some of those present in the Club
during this raid were searched, including plaintiff Lewis.
During the process of being searched, Lewis was pushed
outside the Club, grabbed and shoved against a wall.
After being searched, Lewis was forced to go back inside
the Club until the raid was concluded. Another patron
was pushed off a bar stool. Some of the employees,
including plaintiff James, had guns held on them during
the raid, which lasted from one to one and one-half
hours. At one point, an officer, with his finger on the
trigger, pointed a shotgun at Lewis’ face. . . .
Id. (emphasis added). Other than these facts, Swint states no specific facts about
the roles of Officer Dendinger and Chief Morgan in the searches, except to note,
“Chief Morgan and Officer Dendinger personally participated in both raids.” Id.
at 994 (emphasis added). Thus, nothing in the facts set forth in Swint identifies
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what Dendinger did directly or particularly to any of the plaintiffs, other than that
he told someone who was not a plaintiff to “shut up,” thus showing only that
Dendinger personally participated in the raids. And, other than Chief Morgan’s
refusal to allow James to use the restroom, which also necessarily demonstrates
Chief Morgan’s personal participation in the raids, the opinion contains no
indication that the plaintiffs identified anything specific that Chief Morgan did to
them.
As for the opinion’s description of the second raid—the only one for which
plaintiff Lewis was even present—it does not even identify a particular action in
which either Chief Morgan or Dendinger engaged at all. Moreover, because the
opinion describes the raids as occurring with 30 to 40 officers, we cannot infer
from the facts set forth that Dendinger or Chief Morgan personally conducted the
actual search or pushing of Lewis about which Lewis complained.
Nonetheless, and despite specifically acknowledging Zatler’s rule that §
1983 requires proof of an affirmative causal connection between the official’s acts
or omissions and the alleged constitutional deprivation, this Court concluded in
Swint that qualified immunity had to be denied to all three officers with respect to
all four plaintiffs because, among other reasons, “[n]o reasonable officer in the
defendants’ position could have believed that these were lawful, warrantless
administrative searches.” Id. at 999.
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Our dissenting colleague suggests that we are not bound by what Swint held
when, because of the individual defendants’ core personal participation in a
warrantless search that was illegal from the outset, this Court denied qualified
immunity to each of the individual defendants against each of the individual
plaintiffs. By making this argument, the dissent effectively concedes that Swint
did exactly what we are doing in this case. Only the dissent reasons that we are
free to ignore what Swint did for three reasons.
First, the dissent asserts that “Swint did not consider at all the argument
raised by Deputy Leslie in this appeal—whether an officer can be liable for
violations of clearly established constitutional rights that he did not commit or that
were not pursuant to a policy that he approved.” Dissent at 5. But there is nothing
new in this case that the Court in Swint did not consider.
The dissent’s contention assumes that Deputy Leslie did not engage in
violations of clearly established constitutional rights. But Leslie is not being
denied qualified immunity for violations of clearly established constitutional rights
that he did not commit or that were not pursuant to a policy that he approved. On
the contrary, just like the defendant officers in Swint, Leslie is being held
responsible for his core personal participation in what was, according to our
binding precedent, clearly from the start, an unlawful, warrantless search that
affected each and every one of the plaintiffs. Each of the plaintiff barbers had a
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cognizable Fourth Amendment interest in the property that was illegally searched
and a cognizable Fourth Amendment right not to have been seized by the raiding
unit, under the circumstances. Just as Dendinger and Chief Morgan’s “personal[]
participat[ion]” in the illegal raids in Swint required the denial of qualified
immunity for each of the defendants with regard to each of the plaintiffs, despite
the absence of facts showing exactly what each officer did to each plaintiff whose
rights were violated by the raids, Leslie’s core participation in the illegal search of
the plaintiffs’ property and the unlawful detention of the plaintiffs violated each of
the plaintiffs’ clearly established rights and requires the denial of qualified
immunity.
This reading of Swint’s requirements—that an officer’s core “personal[]
participation” in a warrantless search that is unlawful from its inception violates
the clearly established rights of the people whose property was searched and who
were seized, where the participating officers had clear notice from our prior case
law that participation in a search of that particular type violates the Fourth
Amendment—is the only reading of Swint that does not require us to ignore
significant portions of the opinion. It also describes precisely the fact pattern that
occurred in this case.
Second, the dissent attempts to distance itself from Swint and suggests that
Swint does not compel the conclusion that qualified immunity must be denied to
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Leslie with respect to the claims of Trammon, Durant, and Anderson because in
Swint, this Court did not consider whether the Swint plaintiffs had established that
each of the defendant officers had engaged in specific, identified actions with
regard to each of the particular plaintiffs. See Dissent at 7-8. We respectfully
disagree with the dissent.
In Swint, we expressly identified the requirement that a specific inquiry be
made into the relationship between each defendant’s actions and each plaintiff’s
alleged injuries. In this regard, we quoted Zatler’s requirement of “proof of an
affirmative causal connection between the official’s acts or omissions and the
alleged constitutional deprivation . . . .” Swint, 498 F.3d at 999 (quoting Zatler,
802 F.2d at 401) (internal quotation marks omitted) (emphasis added). We further
recognized in Swint that “it is clear that the inquiry into causation must be a
directed one, focusing on the duties and responsibilities of each of the individual
defendants whose acts or omissions are alleged to have resulted in a constitutional
deprivation.” Swint, 51 F.3d at 999 (quoting Williams v. Bennett, 689 F.2d 1370,
1381 (11th Cir. 1982)) (internal quotation marks omitted) (emphasis added). It
would be strange, indeed, for us to have acknowledged these requirements and
then not have actually considered them in our analysis. But to reach the dissent’s
conclusion, that is precisely what we would have had to have done.
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Moreover, besides talking the talk, we walked the walk with regard to all
three defendants. That is, we actually applied the Zatler causation requirements to
all three defendants. The dissent seems to suggest that we considered only Sheriff
Morgan’s argument that the plaintiffs did not allege facts showing that he
specifically violated their particular rights and that we did not consider that
argument with respect to Dendinger or Chief Morgan. See Dissent at 7-8. But the
opinion in Swint reflects that we specifically considered this very argument as it
pertained to all three Swint defendants: Sheriff Morgan, Dendinger, and Chief
Morgan.
With regard to Sheriff Morgan, we first described the sheriff’s argument as
follows: “According to the Sheriff, ‘the focus must center on the actions taken by
[him] and the information he possessed in taking those actions.’” Id. at 999
(emphasis added). We then explained that Sheriff Morgan’s argument failed for
two reasons. First, we said, “although § 1983 does require proof of an affirmative
causal connection between the official’s acts or omissions and the alleged
constitutional deprivation, ‘[p]ersonal participation . . . is only one of several ways
to establish the requisite causal connection.’” id. (quoting Zatler, 802 F.2d at
401) (internal quotation marks omitted) (emphasis added). Put simply, we
announced that we were considering whether Zatler’s causal-connection
requirement was met. We reasoned that liability could be imposed on Sheriff
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Morgan because a causal connection between his actions and the plaintiffs’
constitutional deprivations existed, although he was present for neither raid, based
on Sheriff Morgan’s approval of an improper policy regarding the raids.
Second, we concluded that Sheriff Morgan’s argument that the plaintiffs did
not adequately demonstrate that he was responsible for their constitutional
deprivations failed because “even if Sheriff Morgan had a reasonable basis for
believing that his policies and training were adequate going into the first raid, that
fails to explain why he authorized exactly the same conduct three months later in
March of 1991, when he had reason to know better.” Id.
As for Dendinger and Chief Morgan, significantly, the very next sentence
and paragraph in the opinion start with the word “similarly” and then go on to
apply the same logic just applied to Sheriff Morgan to Chief Morgan and
Dendinger, demonstrating that we also specifically considered whether Chief
Morgan and Dendinger should be denied qualified immunity where the record
contained no allegations concerning their specific actions with respect to particular
plaintiffs:
Similarly, even if Chief Morgan and Officer Dendinger
had not been fully aware of the Task Force’s plan of
attack before the first raid, as participants in the first raid
they had ample opportunity to determine before the
second raid was conducted whether the first had
comported with constitutional requirements. Upon
learning of the manner in which the first raid was
conducted, reasonable law enforcement officials would
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have been on notice that clearly established Fourth
Amendment rights had been violated. Willingness to
engage in the second raid demonstrated deliberate
indifference to those rights, and it reflected accession to
and adoption of the policies and procedures employed.
Id. at 999-1000 (emphasis added). In other words, we denied qualified immunity
as to Lewis’s claims against Chief Morgan and Officer Dendinger based on Chief
Morgan and Officer Dendinger’s mere personal participation in the second raid
when they should have known that participation in such a warrantless search
clearly violated the Fourth Amendment. Thus, it is clear that we did, in fact,
consider in Swint whether the general allegations concerning Chief Morgan and
Dendinger’s core “personal[] participat[ion]” in the warrantless searches satisfied
Zatler’s requirement that a directed inquiry into the actions of the defendants with
respect to the plaintiffs had been satisfied, and we concluded that it had. As a
result, Swint put Vidler and Leslie on notice that engaging in the type of
warrantless search conducted in Swint clearly violates the Fourth Amendment.
Nor does the fact that the district court did not cite Swint in its opinion and the
plaintiffs did not cite it in their appellate brief somehow make Swint any less
binding precedent.
Finally, implicitly conceding that the raid in the instant case violated clearly
established Fourth Amendment law, the dissent argues in its last attempt to resist
the constraints of Swint that we
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conflate[] two distinct questions: whether a search
violates clearly established law, and who can sue whom
on the basis of that violation. The majority relies on
Swint’s conclusion that the officers in Swint knew the
planned raid violated “clearly established Fourth
Amendment rights,”[7] to draw the unrelated conclusion
that mere participation in such a raid is enough to expose
any officer to liability to any plaintiff.”
Dissent at 8. The problem with this argument arises from the fact that it does not
acknowledge what we actually wrote in Swint. In addition to holding that the
officers knew that the raids in Swint violated clearly established Fourth
Amendment rights, we found Zatler’s requirement of a causal connection between
the defendants’ actions and the plaintiffs’ constitutional deprivation to have been
satisfied by the Swint defendants’ personal participation in unlawfully searching
the club, in violation of the plaintiff owners’ rights, and detaining the plaintiff
employee and plaintiff patron, in violation of their respective rights.
Indeed, we said as much when we concluded with respect to Dendinger and
Chief Morgan’s personal participation in the second raid, “Upon learning of the
manner in which the first raid was conducted, reasonable law enforcement officials
would have been on notice that clearly established Fourth Amendment rights had
7
Here, the dissent appears to acknowledge that Swint concluded that raids of the type
conducted in that case and in this one violate clearly established Fourth Amendment rights,
despite the dissent’s suggestion to the contrary three sentences later. See Dissent at 8 (“That is,
the decision that the majority cites as clearly establishing what these individual officers should
have known was never even mentioned by either the learned district judge or the plaintiffs’ own
counsel.”).
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been violated. Willingness to engage in the second raid demonstrated deliberate
indifference to those rights . . . .” Swint, 51 F.3d at 999. This passage is composed
of two distinct thoughts: the first sentence recognizes that the raids violated clearly
established Fourth Amendment rights, while the second sentence takes the next
step and, based on the Swint defendants’ “deliberate indifference to [the Swint
plaintiffs’ clearly established Fourth Amendment] rights” by engaging in the raids
despite their knowledge that the raids violated clearly established Fourth
Amendment rights, finds a causal connection between the actions of the Swint
defendants and the constitutional injuries of the Swint plaintiffs and attaches
liability to the defendants against the Swint plaintiffs whose clearly established
Fourth Amendment rights they violated. Thus, neither the Court in Swint nor we
conflate the clearly established requirement and the causal-connection requirement.
If the facts of this case differ in any material manner from those of Swint, it
is only that they are even more compelling. Whereas the Swint facts say nothing
more with respect to the second raid than that Dendinger and Chief Morgan
“personally participated” in it, here, the plaintiffs have alleged not only that both
Vidler and Leslie “personally participated” in the search of Strictly Skillz, but that
Vidler planned and supervised the raid, and Leslie participated in the search of the
shop used by all of the plaintiffs to earn a living and then slapped handcuffs on
Berry when he expressed displeasure with the treatment of the other plaintiffs.
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As in Swint, “[n]o reasonable officer in the defendants’ position could have
believed that these were lawful, warrantless administrative searches.” See id. at
999. Where, as alleged here, officers participate in a search that was clearly
established to be illegal from its inception, they are simply not entitled to qualified
immunity any more than an officer who enters and searches a person’s home
without a warrant or an applicable warrant exception. This is not a case where a
group of officers entered a location to execute a validly obtained search warrant,
and, without the approval of the other officers participating in the authorized
search, one or two officers went off on an unconstitutional frolic of their own.
Here, the entire search itself was unlawful from the beginning, and Vidler and
Leslie, who fully participated in it, could reasonably be found to have violated the
rights of all of the barbers searched and all of the barbers with a Fourth
Amendment interest in Strictly Skillz’s space, regardless of what each officer did
one on one to each particular plaintiff barber.
Each officer’s discrete actions in what was clearly an unlawful search from
the outset are not the focus of our inquiry here. Rather, the conduct under scrutiny
is the officers’ core participation in the warrantless search itself. 8 Vidler and
8
Several of our sister circuits have similarly held that personal participation in an
unconstitutional search is sufficient to establish liability. See, e.g., James by James v. Sadler,
909 F.2d 834, 837–38 (5th Cir. 1990) (“[A]ll defendants’ participation in the search and
detention would be sufficient to impose liability under § 1983.”); Melear v. Spears, 862 F.2d
1177, 1186 (5th Cir. 1989) (“[The officer] was a full, active participant in the search, not a mere
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Leslie were not alleged to have engaged in segregable conduct outside of the
clearly unlawful search that was otherwise occurring while they happened to be
present and engaging in lawful activity. Instead, Vidler and Leslie were
entrenched participants in the warrantless search, which, from the start, violated
the Fourth Amendment.
It has long been clearly established that a warrantless administrative
inspection must be narrowly tailored to the administrative need that justifies it.
Here—where the authorized purpose of the inspection was simply to check for
barbering licenses and sanitation violations, and there is no indication that the
defendants had any reason to believe that the inspection would be met with
violence—the manner in which the supposed inspection of Strictly Skillz was
undertaken was unreasonable from its inception and was, in fact, a search. Our
cases and those of the Supreme Court have long and repeatedly put officers on
notice of these facts. Because, under the facts alleged by the plaintiffs in this case,
Vidler and Leslie were active participants in the unconstitutional search of Strictly
bystander. . . . Because the jury could properly have found that the search was unconstitutional, it
was also justified in finding both officers liable for their integral participation in the violation.”);
Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) (“[T]he ‘integral participant’ rule . . .
extends liability to those actors who were integral participants in the constitutional violation,
even if they did not directly engage in the unconstitutional conduct themselves.”); Russo v.
Massullo, 927 F.2d 605 (6th Cir. 1991) (per curiam) (“The defendants attempt to evade liability
by pointing to each other. However, their arguments are unpersuasive in light of cases holding
that all members of the team are liable where there is a team effort or where the members were
an integral part of an unlawful search and seizure.”).
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Skillz, a jury could find them liable for the plaintiffs’ resulting constitutional
injuries. We therefore AFFIRM the order below.
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WILLIAM PRYOR, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion that the search of the barbershop
exceeded the scope of a reasonable administrative inspection and that the barbers
presented evidence that Corporal Keith Vidler, as the supervisor, violated their
clearly established constitutional rights. I also agree that Brian Berry presented
evidence that Deputy Travis Leslie, who handcuffed Berry and patted him down,
violated his clearly established constitutional rights. But Edwyn Durant, Reginald
Trammon, and Jermario Anderson presented no evidence that Deputy Travis Leslie
violated their constitutional rights. Even though the inspection of the barbershop
appeared to be “a scene right out of a Hollywood movie” (Majority Op. at 1), we
cannot bend the law to resolve this appeal with a feel-good ending from a box-
office hit. The law entitles Leslie to qualified immunity against any barber who
failed to present evidence that Leslie personally deprived him of a clearly
established constitutional right. Durant, Trammon, and Anderson failed to prove an
affirmative causal connection between their specific injuries and Leslie’s conduct.
For that reason, I respectfully concur in part and dissent in part.
I agree with the majority that, to establish “an ‘affirmative causal
connection’ between the official and the alleged deprivation,” the barbers “must
show that the official was personally involved in the acts that resulted in the
constitutional deprivation.” (Majority Op. at 20 (quoting Zatler v. Wainwright, 802
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F.2d 397, 401 (11th Cir. 1986)).) And counsel for the barbers acknowledged at oral
argument that our precedents “require” us to compare “each officer’s actions” to
the injury suffered by “each individual plaintiff.” But, after reciting the correct
governing law, the majority fails to consider whether each barber proved a causal
connection between his specific injury and Deputy Leslie’s conduct.
Durant, Trammon, and Anderson failed to present evidence that Leslie
personally violated their constitutional rights. Durant testified that a male deputy
wearing a uniform searched his workstation and ordered him to sit down, but he
failed to identify that male deputy as Leslie. Although Leslie wore a uniform, more
than one uniformed, male deputy participated in the search. Trammon testified that
two female deputies handcuffed and searched him. Trammon also testified that a
female inspector and another officer searched his workstation, but he failed to
identify the other officer as Leslie. And counsel for the barbers conceded at oral
argument that “there is no evidence that [Leslie] did anything personally to . . .
Tramm[on].” Finally, Anderson testified that a short, male deputy wearing a mask
and bulletproof vest handcuffed him and searched his workstation. But Leslie was
not wearing a bulletproof vest and was not wearing a mask. And, despite having
seen Leslie handcuff Berry, none of the barbers testified that the officer who
searched him was the same officer who handcuffed Berry.
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The majority asserts that “[t]he record clearly supports a finding that” Leslie
was an “active and full participant[] in the unconstitutional intrusion” because
Leslie “placed [Brian Berry] in handcuffs and helped to execute the
unconstitutional search of the shop and barbering stations,” (id. at 21), but “the
inquiry into causation must be a directed one, focusing on the duties and
responsibilities of each of the individual defendants whose acts or omissions are
alleged to have resulted in a constitutional deprivation,” Swint v. City of Wadley,
Ala., 51 F.3d 988, 999 (11th Cir. 1995). We must recall that the barbers sued Leslie
in his individual capacity for money damages. See Harlow v. Fitzgerald, 457 U.S.
800, 814, 102 S. Ct. 2727, 2736 (1982). To be sure, each barber suffered a
violation of his constitutional rights, and each barber has a valid claim against any
officer who participated in that barber’s injury. But the other barbers cannot
piggyback on the violation of Berry’s constitutional rights to obtain damages from
Leslie’s pocket for violations caused by other officers. And Leslie’s general
“help[] . . . execut[ing]” the search, (Majority Op. at 21), is not sufficient to
deprive him of qualified immunity, see Zatler, 802 F.2d at 401; see also Rizzo v.
Goode, 423 U.S. 362, 371, 96 S. Ct. 598, 604 (1976) (dismissing a claim under
section 1983 because the plaintiffs proved only that “[i]ndividual police officers
not named as parties to the action were found to have violated the constitutional
rights of particular individuals, only a few of whom were parties plaintiff” and thus
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there was no “affirmative link” between the actual defendants and the plaintiffs)
(emphasis omitted); cf. Brown v. City of Huntsville, Ala., 608 F.3d 724, 737 (11th
Cir. 2010) (“Merely being present . . . at the scene is not enough.”). Unlike Berry,
Durant, Trammon, and Anderson failed to present any evidence that Deputy Leslie
participated in any way in inflicting the constitutional injuries that they suffered.
The majority boasts that “it is difficult to imagine a straighter application of
binding precedent than Swint to the facts of this case,” but its reading of Swint is
far from “a straight[] application of binding precedent.” (Majority Op. at 22.) The
majority points out that “nothing in the facts set forth in Swint identifies what [the
officer] or [the police chief] did directly or particularly to any of the plaintiffs” and
yet the Swint court ruled “that qualified immunity had to be denied to all three
officers with respect to all four plaintiffs because, among other reasons, ‘no
reasonable officer in the defendants’ position could have believed that these were
lawful, warrantless administrative searches.’” (Majority Op. at 24–25 (quoting
Swint, 51 F.3d at 999).) The majority construes this lack of discussion as a binding
command not to engage in a particularized analysis of each plaintiff’s injury and
each defendant’s conduct. According to that reading, the four plaintiffs in Swint,
plus every other employee and patron, would have a valid claim against not only
the police chief, sheriff, and officer, but also all “30 to 40 officers” who
participated in the raid. (Majority Op. at 24.) But Swint holds nothing of the kind.
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At the very least, the police chief in Swint was a supervisor who, like Vidler, could
be liable for the violations of the plaintiffs’ constitutional rights even without
personally participating in the violations, so the court would have no reason to
analyze his conduct as related to each plaintiff’s injury. And we can only speculate
why the court did not discuss the officer’s role in each plaintiff’s injury—perhaps
the officer failed to raise the defense. Our decision in Swint did not consider at all
the argument raised by Deputy Leslie in this appeal—whether an officer can be
liable for violations of clearly established constitutional rights that he did not
commit or that were not pursuant to a policy that he approved.
Let’s be clear about what the majority reads Swint to require. Under the
majority’s reading, every officer at the scene of an invalid search is liable for every
violation of every plaintiff’s rights. Even those officers who do not so much as
look in the direction of a plaintiff, or so much as breathe on a plaintiff’s property,
or have any supervisory responsibility over the offending officers, will
nevertheless be liable to every plaintiff due to the officers’ “mere personal
participation” when they “should have known that participation in such a . . .
search clearly violated the Fourth Amendment.” (Majority Op. at 30.) And so the
majority holds Deputy Leslie is subject to liability, despite no record evidence that
Leslie touched Durant, Trammon, or Anderson, no record evidence that Leslie
touched any property belonging to Durant, Trammon, or Anderson, and no record
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evidence that Leslie supervised any of the officers who searched or seized property
of Durant, Trammon, and Anderson.
Let’s be just as clear that this is not what Swint requires. Swint proceeded, in
relevant part, by addressing only three arguments raised by the officers in that
appeal. First, the “[d]efendants argued” that “the search . . . was pursuant to
probable cause and exigent circumstances.” 51 F.3d at 996 (alteration and internal
quotation marks omitted). As to probable cause, the officers argued that both
general information about the club and the “drug transactions that preceded each of
the raids” provided probable cause for the search. Id. at 997. After recounting the
police chief’s and sheriff’s testimony, we ruled that the general information about
the club did not amount to arguable probable cause and that “[p]robable cause to
arrest one suspect . . . did not give the officers carte blanche to seize everyone who
happened to be in the Club when the two raids took place.” Id. And we explained
that “[w]e need not address defendants’ exigent circumstances argument,” because
we had already concluded that the officers lacked probable cause and “it is well-
settled that . . . warrantless searches and seizures require that both probable cause
and exigent circumstances exist.” Id. at 998 (alteration and internal quotation
marks omitted). Second, the “[d]efendants argue[d]” that “the two raids were
administrative searches of the Club to which the Club owners had previously
consented.” Id. We ruled that the facts “simply [did] not support an administrative
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search theory” because the raids involved a “massive show of force and excessive
intrusion,” and “the officers did not simply search for violations of the liquor
laws.” Id. at 998–99. Third, “Sheriff Morgan advance[d] another argument on the
question of . . . whether he engaged in conduct violative of the rights established
by clearly-established law.” Id. at 999 (emphasis added) (alteration and internal
quotation marks omitted). As to this argument raised only by the sheriff, we
explained that, “although § 1983 does require proof of an affirmative causal
connection between the official’s acts or omissions and the alleged constitutional
deprivation, personal participation is only one of several ways to establish the
requisite causal connection.” Id. (alterations and internal quotation marks omitted).
We explained that we also may impose liability “due to the existence of an
improper policy.” Id. (internal quotation mark omitted). We then considered the
information known to the sheriff and ruled that he had authorized an improper
policy. Id.
To be sure, Swint clearly established that the information known to the
officers about the club does not amount to arguable probable cause for a raid; that a
single drug transaction does not amount to arguable probable cause to search an
entire establishment; that massive shows of force amount to unreasonable
administrative inspections; and that owners and patrons can establish an
affirmative causal connection between the violations of their constitutional rights
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and a supervisor, like the sheriff, if the supervisor approved a policy that allowed
the violations. But Swint said nothing at all about—much less clearly established—
whether every person present during an unreasonable search has a valid claim
against every officer who participated in that search.
I part ways with the majority because it conflates two distinct questions:
whether a search violates clearly established law, and who can sue whom on the
basis of that violation. The majority relies on Swint’s conclusion that the officers in
Swint knew the planned raid violated “clearly established Fourth Amendment
rights,” to draw the unrelated conclusion that mere participation in such a raid is
enough to expose any officer to liability to any plaintiff. (Majority Op. at 30
(quoting Swint, 51 F.3d at 999–1000).) But the central issue in Swint was whether
the officers would have been on notice that the raid violated clearly established
Fourth Amendment rights. The answer to that question does not establish whose
Fourth Amendment rights they violated. Perhaps for that reason, neither the district
court in its order nor the barbers in their brief even cite to Swint at all. That is, the
decision that the majority cites as clearly establishing what these individual
officers should have known was never even mentioned by either the learned
district judge or the plaintiffs’ own counsel.
Because Durant, Trammon, and Anderson failed to prove a causal link
between Deputy Leslie’s conduct and their constitutional deprivations, I
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Case: 13-14092 Date Filed: 09/16/2014 Page: 44 of 44
respectfully concur in part and dissent in part. I would reverse the denial of
summary judgment for the claims brought by Anderson, Durant, and Trammon
against Leslie and render partial summary judgment in his favor.
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