Jamila Russell v. Superior Court of the Virgin I

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 17-2255
_______________

JAMILA RUSSELL; L.T.

v.

SUPERIOR COURT MARSHAL CHRISTOPHER
RICHARDSON,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
GOVERNMENT OF THE VIRGIN ISLANDS; SUPERIOR
COURT OF THE VIRGIN ISLANDS,

Superior Court of the Virgin Islands,
Superior Court Marshal Christopher Richardson,
in his individual and official capacity,
Appellants
_______________

On Appeal from the District Court
of the Virgin Islands
(D.V.I. Civ. No. 1-15-cv-00049)
Honorable Anne E. Thompson, U.S. District Judge
_______________

Argued: May 22, 2018
 Before: KRAUSE, ROTH, and FISHER, Circuit Judges

(Opinion Filed: September 25, 2018)

Gordon C. Rhea, Esq. [Argued]
Richardson Patrick Westbrook & Brickman
1037 Chuck Dawley Boulevard
Building A
Mount Pleasant, SC 29464

Yvette D. Ross-Edwards, I, Esq.
Law Office of Yvette Ross-Edwards
429 King Street, Suite 8
Frederiksted, VI 00840

Counsel for Plaintiff-Appellees Jamila Russell and
L.T.

Paul L. Gimenez, Esq. [Argued]
Superior Court of the Virgin Islands
Office of General Counsel
P.O. Box 70
St. Thomas, VI 00804

Counsel for Defendant-Appellant Superior Court of
the Virgin Islands and Christopher Richardson

Ian S.A. Clement, Esq.
Su-Layne U. Walker, Esq.
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade

2
GERS Complex, 2nd Floor
St. Thomas, VI 00802

Counsel for Defendant-Appellee Government of the
Virgin Islands

_______________

OPINION OF THE COURT
_______________

KRAUSE, Circuit Judge.

In this tragic case, after Appellee Jamila Russell
enlisted the help of the Virgin Islands Superior Court and its
Court Marshals with her truant teenage son, L.T., Deputy
Marshal Chris Richardson allegedly shot him at his home,
unarmed and mostly undressed, rendering him a quadriplegic.
Russell filed suit and the District Court denied the motions of
Richardson and the Superior Court to dismiss on various
immunity grounds. In this interlocutory appeal, we consider,
among other things, whether judicial immunity extends to
protect an officer from a suit challenging the manner in which
he executed a court order. Because we, like the District
Court, conclude it does not, and the District Court’s thorough
and careful opinion properly disposed of the motions in
almost all respects, we will affirm except as to Appellees’
claim for gross negligence, for which the Virgin Islands has
not waived sovereign immunity and which thus should be
dismissed on remand.

3
I. Background

A. Factual Background1

At the time of the conduct at issue in this case, L.T.
was 15 years old and had been designated by the Virgin
Islands Superior Court a “Person in Need of Supervision”
(PINS), meaning a “child” who, among other things,
“habitually disobeys the reasonable demands of the person
responsible for the child’s care and is beyond their control.”
V.I. Code Ann. tit. 5, § 2502(23). That designation also
subjected L.T. to a court order directing him to “follow the
reasonable rules of his mother while living with her.” JA 18.
Apparently, however, his mother continued to have problems
with his behavior.

One day, concluding she needed “assistance” with
ensuring L.T.’s compliance, Russell contacted the Superior
Court and “requested that [L.T.] be brought before the judge
to answer for his behavior.” JA 18. According to the
complaint, she also “advised that her son was at home in his
bed.” JA 18. In response to her request, several Superior
Court Marshals, including Deputy Marshal Christopher
Richardson, arrived at Russell’s home later that day. L.T.
was at that point “relaxing in his room, in his underwear and

1
As this is an appeal of the denial of motions to
dismiss for failure to state a claim and lack of subject matter
jurisdiction, the factual allegations are taken from the
operative complaint and accepted as true. Krieger v. Bank of
Am., N.A., 890 F.3d 429, 434 (3d Cir. 2018); Batchelor v.
Rose Tree Media Sch. Dist., 759 F.3d 266, 271 (3d Cir.
2014).

4
unarmed.” JA 19. The precise sequence of events that
unfolded is unclear at this stage, but, according to the
complaint, “Richardson shot [L.T.] under circumstances that
were unjustified and an excessive use of force since [L.T.]
was unarmed and did not threaten bodily harm to the
marshals or third parties as he was attempting to run past the
marshals.”2 JA 19.

L.T. was airlifted to Puerto Rico for medical treatment,
but the shooting rendered him a quadriplegic.

B. Procedural History

Russell eventually filed this action on behalf of herself
and L.T. (collectively, “the Family”)3 in the District Court of
the Virgin Islands. The operative complaint included claims
against Richardson under 42 U.S.C. § 1983 for excessive

2
In their brief, Appellants take it upon themselves to
offer additional clarity by pointing to extra detail found not in
the complaint but rather in the Marshals’ own affidavits and
an internal incident report that the Marshal’s Office filed with
the Superior Court after the shooting. At this stage, however,
we, like the District Court, “must consider only the
complaint, exhibits attached to the complaint, matters of
public record, as well as undisputedly authentic documents if
the complainant’s claims are based upon these documents.”
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
3
L.T. reached the age of majority after the complaint
was filed, and, as the caption here reflects, he is now a party
to this case in his own right.

5
force and under territorial law for negligence, gross
negligence, and negligent and intentional infliction of
emotional distress, as well as claims against the Superior
Court for negligence, negligent hiring and retention, and
vicarious liability.4 As relevant to the claims at issue in this
appeal, Richardson and the Superior Court (together,
“Appellants”) filed motions to dismiss under Federal Rules of
Procedure 12(b)(1) and 12(b)(6), with Richardson arguing he
enjoyed a form of absolute immunity known as “quasi-
judicial” immunity and qualified immunity with respect to the
§ 1983 claim, and both parties arguing they enjoyed
sovereign immunity with respect to the tort claims.

The District Court rejected those arguments. As to
Richardson’s claim of quasi-judicial immunity, the District
Court acknowledged that many cases have granted such
immunity to officers who have been sued for their role in
enforcing court orders but determined that the reasoning
behind those cases “d[id]n’t cover shooting somebody.”
JA 69. The Court therefore held that absolute immunity did
not apply. And while the Court recognized that the qualified
immunity issue should be decided “at the earliest point
possible in the case,” JA 12; see Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam) (noting “the importance of
resolving immunity questions at the earliest possible stage in
litigation”), it found this case “too fact sensitive for [it] to

4
While the complaint also named as a defendant the
Government of the Virgin Islands, none of the claims was
expressly directed at the Government and it is not a party to
this appeal. It has, however, filed a brief in support of
Appellants.

6
make that kind of ruling now, without discovery,” JA 85.
Instead, it explained, Richardson would be permitted to renew
the defense once a “fuller factual record ha[d] been
developed.” JA 12.

As to the sovereign immunity asserted by both
defendants, the District Court recognized that, to bring a tort
claim against the Virgin Islands Government, its departments,
or its employees in their official capacities, a plaintiff must
comply with the terms of the Virgin Islands Tort Claims Act,
V.I. Code Ann. tit. 33, §§ 3401–3417, as a predicate to the
courts’ jurisdiction. But it rejected defendants’ argument that
the Family had failed to do so, either by filing an inadequate
“notice of intention to file a claim” or by failing to file a
“claim.” “[S]ubstantial compliance with the statute is all that
is required,” JA 11 (quoting Brunn v. Dowdye, 59 V.I. 899,
910 (2013)), the Court observed, and the Family had
“sufficiently complied,”5 JA 11.

5
The District Court did dismiss claims for “negligent
hiring and retention and negligent supervision/training
contained in Counts III and IV” for failure to comply with the
VITCA, JA 11, but those claims are not at issue in this
appeal. We note, for the sake of clarity, that the references to
“Counts III and IV” appear to be references to each of the two
counts listed sequentially in the complaint as “Count III,” the
first of which was for negligent training and supervision and
the second of which was for negligent hiring and retention.
The actual Count IV of the complaint asserted vicarious
liability against the Superior Court as Richardson’s employer,
which, of course, merely reflects the “basis to extend the
liability of [Richardson’s] underlying torts” reflected in the
VITCA itself. Bonelli v. Gov’t of the Virgin Islands, No. ST-

7
 Following the denial of their motions to dismiss,
Appellants filed an omnibus motion for reconsideration,
clarification, and a more definite statement, and asked the
District Court to stay discovery until both that motion and the
forthcoming appeal to this Court had been resolved. But they
soon withdrew the omnibus motion, and the District Court
declined to issue a stay, ordering discovery to proceed “solely
on the issue of . . . qualified immunity,” JA 14. Appellants
then filed this timely appeal. Appellants also filed a motion
to stay discovery pending appeal, which we denied.
Discovery continued and, by the time of oral argument in this
case, was nearly complete.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.
§ 1331 and 28 U.S.C. § 1367(a). Under the collateral order
doctrine, we have jurisdiction to review a denial of quasi-
judicial or qualified immunity insofar as it turns on an issue
of law. Mitchell v. Forsyth, 472 U.S. 511, 529 (1985);
Hamilton v. Leavy, 322 F.3d 776, 782 (3d Cir. 2003). The
question whether that doctrine also vests us with jurisdiction
over a denial of the Virgin Islands’ sovereign immunity has
not previously been addressed by this Court, but for the
reasons we will discuss in more detail below, we conclude
that it does. See infra Part III.C.1.

13-CV-175, 2015 WL 1407259, at *5 (V.I. Super. Ct. Mar.
19, 2015), aff’d, 67 V.I. 714 (2017); cf. Lomando v. United
States, 667 F.3d 363, 373 n.8 (3d Cir. 2011) (“All [Federal
Tort Claims Act] liability is respondeat superior liability[.]”
(citation omitted)).

8
 We review de novo a denial of quasi-judicial,
qualified, or sovereign immunity. Karns v. Shanahan, 879
F.3d 504, 512 (3d Cir. 2018); Dotzel v. Ashbridge, 438 F.3d
320, 324–25 (3d Cir. 2006).

III. Discussion

Appellants contend that the District Court erred in
denying Richardson quasi-judicial immunity and qualified
immunity and in denying them both sovereign immunity.6
We address each of these three immunity doctrines below.

6
Richardson’s quasi-judicial and qualified immunity
defenses apply to the extent he has been sued in his individual
capacity, and his sovereign immunity defense applies to the
extent he has been sued in his official capacity. See Kentucky
v. Graham, 473 U.S. 159, 166–67 (1985) (“[A]n official in a
personal-capacity action may, depending on his position, be
able to assert personal immunity defenses . . . . In an official-
capacity action, these defenses are unavailable. The only
immunities that can be claimed in an official-capacity action
are forms of sovereign immunity[.]” (citations omitted));
Davis v. Knud-Hansen Mem’l Hosp., 635 F.2d 179, 186 (3d
Cir. 1980) (holding that the Virgin Islands’ statutory
sovereign immunity “does not provide any immunity to
Government officers or employees sued in their individual
capacities”).

9
 A. Quasi-Judicial Immunity

We start with Richardson’s argument that he cannot be
sued for using excessive force because, just as a judge enjoys
absolute “judicial immunity” for an official act like issuing a
PINS order, so too does Richardson enjoy “quasi-judicial”
immunity for his official acts in enforcing that order. We
briefly review the history of this immunity doctrine before
turning to its application to this case.

1. The Quasi-Judicial Immunity Doctrine

Quasi-judicial immunity, as one might guess, evolved
out of its well-known namesake, judicial immunity. “Few
doctrines were more solidly established at common law than
the immunity of judges from liability for damages for acts
committed within their judicial jurisdiction[.]” Pierson v.
Ray, 386 U.S. 547, 553–54 (1967). That immunity secures a
“general principle of the highest importance to the proper
administration of justice”: ensuring that a “judicial officer, in
exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal
consequences to himself,” Bradley v. Fisher, 80 U.S. (13
Wall.) 335, 347 (1871), and “without harassment or
intimidation” in those “controversies sufficiently intense to
erupt in litigation,” Butz v Economou, 438 U.S. 478, 512
(1978). Judicial immunity is thus essential to judges’ ability
to exercise “independent and impartial . . . judgment.”
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993).

The fair administration of justice depends not only on
judges, however, and these same concerns apply to “certain
others who perform functions closely associated with the

10
judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200
(1985). For that reason, so-called “quasi-judicial” immunity
has been extended over time to protect a range of judicial
actors, including (1) those who make discretionary judgments
“functional[ly] comparab[le]” to judges, such as prosecutors
and grand jurors, Imbler v. Pachtman, 424 U.S. 409, 423 n.20
(1976); (2) those who “perform a somewhat different function
in the trial process but whose participation . . . is equally
indispensable,” such as witnesses, Briscoe v. LaHue, 460 U.S.
325, 345–46 (1983); and (3) those who serve as “‘arms of the
court,’ . . . fulfill[ing] a quasi-judicial role at the court’s
request,” such as guardians ad litem or court-appointed
doctors, Hughes v. Long, 242 F.3d 121, 126 (3d Cir. 2001).
In this case, we focus on the last category.

In determining whether a government actor was
fulfill[ing] a quasi-judicial role at the court’s request, we take
a “‘functional’ approach to immunity,” Forrester v. White,
484 U.S. 219, 224 (1988). That is, “we examine the nature of
the functions with which a particular official or class of
officials has been lawfully entrusted, and we seek to evaluate
the effect that exposure to particular forms of liability would
likely have on the appropriate exercise of those functions.”
Id. Merely being “part of the judicial function,” even an
“extremely important” part, will not automatically entitle one
to quasi-judicial immunity. Antoine, 508 U.S. at 435–36
(refusing to extend such immunity to court reporters). Even a
judge will not enjoy immunity for “nonjudicial actions, i.e.,
actions not taken in [her] judicial capacity,” or for judicial
actions “taken in the complete absence of all jurisdiction.”
Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (per curiam).
Absolute immunity, we have been told time and again, is
“strong medicine,” Forrester, 484 U.S. at 230 (citation

11
omitted), and the “presumption is that qualified rather than
absolute immunity is sufficient to protect government
officials in the exercise of their duties,” Burns v. Reed, 500
U.S. 478, 486–87 (1991). Accordingly, an “official seeking
absolute immunity bears the burden of showing that such
immunity is justified for the function in question.” Id. at 486.

2. Application to This Case

Appellants here contend that the relevant function that
justifies affording Richardson absolute immunity is “the
enforcement of judicial orders by a court’s marshal.”
Appellants’ Br. 22. Reading two of our precedents and one
from the Tenth Circuit as standing for a categorical rule that
“any public official acting pursuant to a court directive is
immune from suit,” regardless of the specific action
challenged in that suit, Appellants argue that Richardson
enjoys immunity from the excessive force claim here because
at the time he shot L.T. he was acting “at the direction of a
judge.” Appellants’ Br. 21. And, according to Appellants,
“[t]here simply cannot be one rule for a deputy who is able to
accomplish th[at] directive without incident and a different
rule for a deputy who meets with resistance that results in an
injury or death.” Appellants’ Br. 27.

The problem with this argument is that it ignores the
distinction between claims based on the actions actually
authorized by court order, which are barred by quasi-judicial
immunity, and those based on the manner in which a court
order is enforced, which are not. As we explain below, that
distinction dates to common law, has been consistently
recognized by the Courts of Appeals, and is all but dictated
by the “functional” approach to modern-day immunity. It

12
also leads us to affirm the District Court’s denial of absolute
immunity to Richardson.

We start with the common law, which informs our
consideration of immunities available under § 1983. Rehberg
v. Paulk, 566 U.S. 356, 362–63 (2012). Historically, the
“rule” was that a “ministerial officer [wa]s protected in the
execution of process issued by a court,” meaning that, for
example, a “sheriff” was “protect[ed] . . . in making [an]
arrest.” Tuttle v. Wilson, 24 Ill. 553, 561 (1860). It was also
clear, however, that when such a “quasi-judicial officer . . .
act[ed] ministerially,” he could be “liable for carelessness or
negligence like any other ministerial officer.” Floyd R.
Mechem, A Treatise on the Law of Public Offices and
Officers § 643, at 429 (Chicago, Callaghan & Co. 1890)
(emphasis omitted) (hereinafter Mechem). And because an
arrestee was “entitled to be treated with ordinary humanity,
and any unnecessary severity could not be justified by the
writ,” Thomas M. Cooley, A Treatise on the Law of Torts or
the Wrongs Which Arise Independent of Contract 395
(Chicago, Callaghan & Co. 1879), the common law provided
that, “though the process for the arrest of the defendant is
valid, yet the officer may render himself liable to the
defendant for abuses of his process, as where the officer . . .
uses excessive force,” Mechem § 771, at 509. The
authorization/manner distinction thus applied with particular
force to officers tasked with making arrests.

Contrary to Richardson’s contention, our own case law
to date has adhered to this distinction. In Lockhart v.
Hoenstine, 411 F.2d 455 (3d Cir. 1969), where the defendant
had sued the court prothonotary for unlawfully refusing to file
his appeal papers, we held that the prothonotary enjoyed

13
absolute immunity because his refusal was “at the direction of
the court,” and “any public official acting pursuant to court
directive is . . . immune from suit.” Id. at 460. Likewise, in
Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975), we granted
immunity to an investigator for the public defender for
“act[ing] under orders of the . . . court” to help extradite the
plaintiff for prosecution, id. at 205, reasoning that the
investigator’s “only function . . . [wa]s to assist in the defense
of the accused” and he “ha[d] no power to deprive anyone of
his or her rights,” id. at 207. We observed that other cases
had immunized “police officers engaged in ministerial
functions under [a judge’s] direction,” id. at 206, but we
noted that such immunity only extended to “officers acting
properly under a warrant or other lawful process,” id. at 207
n.6. These cases thus distinguished between acts that were
authorized by court order and acts that exceeded such
authorization, but neither squarely addressed whether quasi-
judicial immunity extends to the manner in which an officer
executes a court order.

Other Courts of Appeals have confronted that
question, however, and have consistently concluded that
absolute immunity does not extend so far.

Richardson purports to draw support from Valdez v.
City and County of Denver, 878 F.2d 1285 (10th Cir. 1989),
where the Tenth Circuit “h[e]ld that an official charged with
the duty of executing a facially valid court order enjoys
absolute immunity from liability for damages in a suit
challenging conduct prescribed by that order.” Id. at 1286.
But the Valdez court went on to caution that, “of course, an
official performing ministerial tasks with less than due care
may be liable for damages.” Id. at 1289 n.6. And the

14
following year, the Tenth Circuit even more clearly rejected
the argument that officers enjoy quasi-judicial immunity for
excessive force claims, explaining that, “[w]hile the immunity
granted in Valdez protects defendants from liability for the
actual arrest, it does not empower them to execute the arrest
with excessive force,” nor does it provide “absolute[]
immun[ity] from liability for the manner in which [officers]
carry out otherwise proper court orders.” Martin v. Bd. of
Cty. Comm’rs, 909 F.2d 402, 404–05 (10th Cir. 1990) (per
curiam). Instead, the court reasoned, because a judicial order
“contains an implicit directive” that it be “carried out in a
lawful manner,” officers who “exceed[] legal bounds in
executing [that order] . . . have a fortiori violated the very . . .
order under which they seek the shelter of absolute
immunity.” Id. at 405.

The Seventh and Ninth Circuits share in that view.7 In
Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001), the court
observed that the grounds for extending quasi-judicial
immunity are “most compelling” when the suit challenges
“conduct specifically directed by the judge, and not simply
the manner in which the judge’s directive was carried out,”
id. at 437. The latter type of suit neither amounts to a
“collateral attack on the judge’s order,” nor places the officer

7
Cf. Martin v. Hendren, 127 F.3d 720, 721–22 (8th
Cir. 1997) (upholding dismissal of an excessive force claim
against a courtroom officer where the judge explicitly ordered
the officer to “put the cuffs on [the plaintiff]” on the grounds
that the officer was “obeying specific judicial commands to
restore order in the courtroom” and he “carr[ied] out a
judicial command in the judge’s courtroom and presence”).

15
in the position of “being called upon to answer for
wrongdoing directed by the judge” that he is “powerless to
avoid.” Id. at 436, 438. Rather, the court explained, such a
suit focuses solely on the officer’s “own conduct.” Id. at 438.
As a result, Richman held, quasi-judicial immunity should
extend to officers “who do nothing more than implement” a
judicial order—but no further. Id. The Ninth Circuit too has
applied these principles to reject quasi-judicial immunity
where the official “act[s] beyond the scope of [the judge]’s
express and implied instructions,” and so is “exposed to
liability (but still protected by qualified immunity) only
because he allegedly went beyond what the judge ordered.”
Brooks v. Clark Cty., 828 F.3d 910, 917–18 (9th Cir. 2016).8

8
Although Appellants do not cite the case, both the
Seventh and Ninth Circuits wrestled with the question
whether Mireles v. Waco, 502 U.S. 9 (1991) (per curiam),
suggested a different result. We agree with them that it does
not. In Mireles, the Supreme Court held that a judge
maintained judicial immunity for expressly ordering the
plaintiff brought to his courtroom “forcibly and with
excessive force.” Id. at 10. While noting that “[o]f course, a
judge’s direction . . . to carry out a[n] . . . order with
excessive force” is not a judicial act, the Court reasoned that
the “relevant inquiry is the ‘nature’ and ‘function’ of the act,
not the ‘act itself,’” for “if only the particular act in question
were to be scrutinized, then any mistake of a judge in excess
of his authority would become a ‘nonjudicial’ act, because an
improper or erroneous act cannot be said to be normally
performed by a judge.” Id. at 12–13. In other words, Mireles
arose in the traditional judicial immunity context, as the
plaintiff had “challenged the judge’s order directly . . . by
suing the judge,” and, though the judge there had allegedly

16
 Today, we join our Sister Circuits and make explicit
what was implicit in our decisions in Lockhart and Waits:
Quasi-judicial immunity extends only to the acts authorized
by court order, i.e., to the execution of a court order, and not
to the manner in which it is executed. Here, the court order at
issue is the PINS order, which merely required L.T. to follow
his mother’s “reasonable rules,” and the Family does not
claim that Richardson violated the law by performing acts
authorized under that order; instead, they claim that
Richardson exceeded the authorization of that order and used
excessive force in the manner of its execution. And, indeed,
given the terms of the PINS order, the act of shooting L.T.
was obviously not “at the direction of a judge.”9 Because an

ordered the use of excessive force, the Court merely
reaffirmed the basic principle that the “applicability of
absolute immunity cannot turn on the correctness of the
judge’s decision.” Richman, 270 F.3d at 436. The court
order here, however, did not instruct Richardson to use
excessive force; indeed, it did not instruct him to use any
force at all. Rather, as in Martin, Richman, and Brooks, the
basis for this suit is that Richardson employed more force
than he was authorized by any court order to use.
9
Nor is it even clear that the shooting occurred while
Richardson was acting “at the direction of a judge.”
According to the complaint, the only reason Richardson went
to the house that day was that Russell had “sought . . .
assistance . . . with enforcing the court’s order,” JA 18—not
because a judge had instructed him to do so. In any event,
even assuming Richardson was acting pursuant to court order,
but see Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d
Cir. 2018) (at this stage we must construe all “reasonable

17
officer’s “fidelity to the specific order[] of the judge marks
the boundary for labeling [his] act ‘quasi-judicial,’” Richman,
270 F.3d at 436, and a court order “carries an implicit caveat
that the officer follow the Constitution” in executing it,
Brooks, 828 F.3d at 919, where the claim is that an officer
exceeded those bounds, quasi-judicial immunity does not
stand in the way. See id. at 917–19; Richman, 270 F.3d at
437–39; Martin, 909 F.2d at 404–05; cf. Waits, 516 F.2d at
207 n.6 (immunity extends only to “officers acting properly
under . . . lawful process”).

Finally, our holding is virtually compelled by the rule
that any new extension of absolute immunity must be
“justified . . . by the functions it protects and serves, not by
the person to whom it attaches.” Forrester, 484 U.S. at 227.
This approach requires us first to “examine the nature of the
functions with which a particular official . . . has been
lawfully entrusted,” id. at 224, with the “relevant decisional
material” being the “legal and structural components of the
job function,” Dotzel, 438 F.3d at 325. We then “evaluate the
effect that exposure to particular forms of liability would
likely have on the appropriate exercise of those functions.”
Forrester, 484 U.S. at 224. Absent “overriding
considerations of public policy,” absolute immunity will not
apply. Id.

As relevant here, Virgin Islands law assigns Superior
Court Marshals the functions of “execut[ing] all writs,

inferences” from the pleaded facts “in a light most favorable
to the non-movant”), he is not entitled to quasi-judicial
immunity for the reasons we explain.

18
processes and orders of the Superior Court,” and
“perform[ing] such other duties incident to” the execution of
those writs, processes, and orders. V.I. Code Ann. tit. 4,
§ 351(b). But while those functions, with which the Marshals
are “lawfully entrusted,” are fully protected by quasi-judicial
immunity, the use of excessive force in the performance of
those functions is neither “at the direction of the judge,”
Waits, 516 F.2d at 206, nor a “dut[y] incident to” the
execution of the judge’s order, § 351(b). We measure an
officer’s acts against the yardstick of that officer’s functions,
and—contrary to Appellants’ insistence that an officer is
immune for all acts incident to the execution of a court order,
regardless how “less-than-perfect” those actions may be,10
Reply Br. 8—we extend quasi-judicial immunity only to acts
consistent with the “appropriate exercise of those functions.”
Forrester, 484 U.S. at 224 (emphasis added). The Family’s
claim, however, is premised on an alleged inappropriate
exercise of those functions.

For all of these reasons, we will affirm the District
Court’s denial of quasi-judicial immunity.

10
Appellants’ approach would turn immunity
jurisprudence on its head, ignoring the “presumption . . . that
qualified rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties,” Burns,
500 U.S. at 486–87, and immunizing law enforcement
officers from suit for any number of civil rights violations
committed while executing any court order, be it an arrest
warrant, search warrant, or any other judicial directive.

19
 B. Qualified Immunity

We turn next to Richardson’s contention that, even if
absolute immunity does not apply, the claim against him
should have been dismissed on qualified immunity grounds
because the complaint did not plead a violation of clearly
established law.

“In considering whether qualified immunity attaches,
courts perform a two-pronged analysis to determine:
(1) ‘whether the facts that the plaintiff has alleged make out a
violation of a constitutional right,’ and (2) ‘whether the right
at issue was “clearly established” at the time of the
defendant’s alleged misconduct.’” Kedra v. Schroeter, 876
F.3d 424, 434 (3d Cir. 2017) (alterations omitted) (quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Because
“‘[c]learly established’ means that, at the time of the officer’s
conduct, the law was ‘sufficiently clear’ that every
‘reasonable official would understand that what he is doing’
is unlawful,” District of Columbia v. Wesby, 138 S. Ct. 577,
589 (2018), the right must be “defined in terms of the
‘particularized’ factual context of th[e] case,” Kedra, 876
F.3d at 435 (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). Such “specificity . . . is especially important in
the Fourth Amendment context.” Wesby, 138 S. Ct. at 590.

The allegations here meet that standard. According to
the complaint, Richardson was called to the Family’s house to
“assist[]” in enforcing L.T.’s PINS order and to “br[ing]
[him] before the judge.” JA 18. When Richardson arrived,
L.T. allegedly was “relaxing,” “in his underwear,” and
“unarmed.” JA 19. And, when L.T. “attempt[ed] to run past
the marshals,” Richardson shot him. JA 19. These

20
allegations, taken as true, are sufficient to plead the violation
of a clearly established constitutional right: the right of an
unarmed individual to be free from the use of deadly force
unless such force is “necessary to prevent [his] escape and the
officer has probable cause to believe that [he] poses a
significant threat of death or serious physical injury to the
officer or others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985).

Garner, of course, “lay[s] out excessive-force
principles at only a general level.” White v. Pauly, 137 S. Ct.
548, 552 (2017) (per curiam). But “general statements of the
law are not inherently incapable of giving fair and clear
warning to officers.” Id. For this reason, while Garner
usually “do[es] not by [itself] create clearly established law,”
it may do so in an “obvious case,” id., for example, where the
circumstances reflect “the absence of a serious threat of
immediate harm to others.” Davenport v. Borough of
Homestead, 870 F.3d 273, 281 (3d Cir. 2017); see also
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)
(“[I]n an obvious case, [Garner’s] standard[] can ‘clearly
establish’ the answer, even without a body of relevant case
law.”).

This is such a case. According to the complaint,
Richardson used deadly force against L.T. even though there
was no indication L.T. was then engaged in any misconduct
beyond disobeying his mother; immediately before the
incident, L.T. was allegedly lounging in his bedroom; and
L.T. allegedly exited his room wearing only underwear,
making it implausible to a reasonable officer that he was
hiding a weapon on his person. Accepting these allegations
as we must at this stage, there was no “serious threat of
immediate harm to others,” Davenport, 870 F.3d at 281, and

21
“[t]he absence of any Garner preconditions to the use of
deadly force” makes this an “obvious case where . . . Garner
clearly establishes the law,” Smith v. Cupp, 430 F.3d 766, 776
(6th Cir. 2005). See Henry v. Purnell, 652 F.3d 524, 527, 536
(4th Cir. 2011) (en banc) (holding, where an officer shot “an
unarmed man wanted for [a] misdemeanor . . . when he
started running away,” that “[n]othing removes this case from
the straightforward context of Garner”).

Appellants marshal two arguments to the contrary.
First, they contend that the definition of the right given by the
Family in its brief here—the “right to be free from injury
through the use of excessive force by law enforcement
officers,” Appellees’ Br. 23—is too general to give officers
fair notice. But in defining the right at issue, we look not
only to the parties’ litigation positions, but also to the
allegations in the complaint. See Ashcroft v. Iqbal, 556 U.S.
662, 673 (2009) (“[W]hether a particular complaint
sufficiently alleges a clearly established violation of law
cannot be decided in isolation from the facts pleaded.”). And,
as discussed, the allegations here were sufficient in view of
Garner.

Second, Appellants take issue with the sufficiency of
the pleading in the complaint, arguing that the District Court
should have dismissed it under Federal Rule of Civil
Procedure 12(b)(6) because it “d[id] not provide sufficient
factual information for the framing of a proper qualified
immunity defense.” Thomas v. Independence Twp., 463 F.3d
285, 302 (3d Cir. 2006); see Iqbal, 556 U.S. at 678 (“Rule 8
. . . demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.”). At the very least, they
argue, the District Court, before allowing limited discovery

22
on that defense, should have considered “other procedural
tool[s],” such as requiring the Family to file a more definite
statement under Federal Rule of Civil Procedure 12(e).
Appellants’ Br. 54.

We are not persuaded. True, where the pleading is as
deficient as in Thomas—which featured a “textbook example
of a pleading as to which a qualified defense cannot
reasonably be framed,” 463 F.3d at 289—a district court has
“several options,” such as ordering a more definite statement,
id. at 301. But the complaint here is not devoid of factual
allegations. To be sure, neither is it long on detail. To
survive a motion to dismiss, however, a complaint need only
contain “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
678. The Family’s complaint meets that threshold, and the
District Court thoughtfully and thoroughly analyzed the
complaint to conclude this case was “too fact sensitive . . . to
make [a qualified immunity] ruling . . . without discovery.”
JA 85. The District Court thus did not disregard Thomas but
rather hewed to its guidance that “summary judgment remains
a useful tool for precluding insubstantial claims from
proceeding to trial.” 463 F.3d at 301 (citing Crawford-El v.
Britton, 523 U.S. 574, 600 (1998)). As we perceive no error
in the denial of qualified immunity at this stage, we will
affirm.

C. Sovereign Immunity

Finally, we turn to Appellants’ claim of sovereign
immunity under the Revised Organic Act (“Act”), the federal
law that “[w]e have described . . . as the [Territory’s] basic
charter of government,” Pichardo v. V.I. Comm’r of Labor,

23
613 F.3d 87, 93 n.6 (3d Cir. 2010), and that “confer[s] upon
[the Virgin Islands] attributes of autonomy similar to those of
a sovereign government or state,” Richardson v. Knud
Hansen Mem’l Hosp., 744 F.2d 1007, 1010 (3d Cir. 1984).
One of those attributes is that “no tort action shall be brought
against the government of the Virgin Islands or against any
officer or employee thereof in his official capacity without the
consent of the legislature.” 48 U.S.C. § 1541(b).

Before addressing the merits of Appellants’ sovereign
immunity claim, however, we must assure ourselves that we
have jurisdiction to do so. See Gayle v. Warden Monmouth
Cty. Corr. Inst., 838 F.3d 297, 303 (3d Cir. 2016).

1. Jurisdiction

Appellants contend that we have jurisdiction to review
the District Court’s denial of sovereign immunity under the
collateral order doctrine, which allows certain decisions that
“do not terminate the litigation” to nonetheless count as “final
decisions of the district courts” if they are (1) “conclusive,”
(2) “resolve important questions completely separate from the
merits,” and (3) “would render such important questions
effectively unreviewable on appeal from final judgment in the
underlying action,” Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 865, 867 (1994) (quoting 28 U.S.C.
§ 1291). And they base that contention on Puerto Rico
Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506
U.S. 139 (1993).

Metcalf & Eddy, however, does not squarely answer
the question of jurisdiction for this case because the Supreme
Court held there that the collateral order doctrine applies to

24
the denial of a State’s Eleventh Amendment immunity and we
have not yet resolved whether the Eleventh Amendment
applies to the Virgin Islands. See United Steel Paper &
Forestry Rubber Mfg. Allied Indus. & Serv. Workers Int’l
Union AFL-CIO-CLC v. Gov’t of Virgin Islands, 842 F.3d
201, 207 n.2 (3d Cir. 2016),11 As it turns out, however, we
also need not resolve it today, because Appellants here have
invoked sovereign immunity under the Revised Organic Act,
and we conclude that statutory sovereign immunity, no less
than Eleventh Amendment immunity, meets the criteria for
the collateral order doctrine.

11
The Eleventh Amendment provides, in relevant part,
that federal courts lack jurisdiction to hear “any suit . . .
commenced or prosecuted against one of the United States by
Citizens of another State.” U.S. Const. amend. XI. “While
the Amendment by its terms does not bar suits against a State
by its own citizens, th[e Supreme] Court has consistently held
that an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
another State.” Edelman v. Jordan, 415 U.S. 651, 662–63
(1974). Some, but not all, United States Territories have been
held to lack Eleventh Amendment protections. Compare,
e.g., Norita v. Northern Mariana Islands, 331 F.3d 690, 693–
94 (9th Cir. 2003) (the Northern Mariana Islands is not
protected), with Grajales v. P.R. Ports Auth., 831 F.3d 11, 15
(1st Cir. 2016) (Puerto Rico is). Because neither party asks
us to resolve whether the Virgin Islands falls within the
Amendment’s reach and we need not do so to conclude we
have jurisdiction here, the question, as in United Steel Paper,
is one “we do not decide today.” 842 F.3d at 207 n.2.

25
 The first and third criteria are easily satisfied. By
providing that “no tort action shall be brought” against the
Government without its consent, the Act makes clear that the
Territory’s immunity is an “immunity from trial and the
attendant burdens of litigation . . . , and not just a defense to
liability on the merits.” Fed. Ins. Co. v. Richard I. Rubin &
Co., 12 F.3d 1270, 1281 (3d Cir. 1993). A denial of this
immunity, like the denial of Eleventh Amendment immunity,
is a “conclusive determination[] that [the Virgin Islands] ha[s]
no right not to be sued,” and the “value” of this immunity will
be “for the most part lost as litigation proceeds past motion
practice.” Metcalf & Eddy, 506 U.S. at 145.

Our jurisdiction thus depends on the second criterion:
whether a denial of the Virgin Islands’ statutory sovereign
immunity is sufficiently “important” and “separate from the
merits” of the underlying action to trigger the collateral order
doctrine. Digital Equip., 511 U.S. at 867. In Metcalf &
Eddy, the Court concluded that a State’s invocation of
Eleventh Amendment immunity met those requirements
because it “involve[d] a claim to a fundamental constitutional
protection.” 506 U.S. at 145. But statutory immunity, the
Court has made clear, is no less significant: “When a policy is
embodied in a constitutional or statutory provision entitling a
party to immunity from suit (a rare form of protection), there
is little room for the judiciary to gainsay its ‘importance.’”
Digital Equip., 511 U.S. at 879 (emphasis added). And the
Court recently has characterized Metcalf & Eddy without
regard to its constitutional dimension, describing the
“particular value of a high order” there as “respecting a
State’s dignitary interests.” Will v. Hallock, 546 U.S. 345,

26
352 (2006). The Territory’s “dignitary interests” in its
assertion of statutory immunity also command our respect.12

Having satisfied ourselves of our jurisdiction under the
collateral order doctrine, we turn to the merits of Appellants’
claim of sovereign immunity.

2. Merits

Pointing out that compliance with the requirements of
the Virgin Islands Tort Claims Act (VITCA) is a prerequisite
for its waiver of immunity from tort liability, Appellants
argue that the Family failed to comply in two ways: first, by
filing an insufficient notice of intention to file a claim, and,
second, by failing to file a “claim.” These arguments are
perplexing, to say to the least, as they are flatly contradicted
by the record.

12
More than once we have found statute-based
immunities to implicate sufficiently weighty interests to
warrant application of the collateral order doctrine. See Oss
Nokalva, Inc. v. European Space Agency, 617 F.3d 756, 761
(3d Cir. 2010) (doctrine applies to denial of immunity under
the International Organizations Immunities Act); Fed. Ins.
Co., 12 F.3d at 1281–82 (same for denial of immunity under
the Foreign Sovereign Immunities Act); cf. Aliota v. Graham,
984 F.2d 1350, 1353–54 (3d Cir. 1993) (same for order
resubstituting a federal employee for the United States under
the Westfall Act, which “effectively denies [the] employee’s
claim to absolute immunity”).

27
 We begin with the notice, the purpose of which is to
give the Government “enough information to enable [it] to
make an investigation in order to determine if the claims
should be settled without suit.” Abdallah v. Callender, 1 F.3d
141, 148 (3d Cir. 1993). The VITCA provides that a notice
of intention must be filed in the Office of the Governor of the
Virgin Islands and served on the Attorney General within
ninety days after the claim accrued. V.I. Code Ann. tit. 33,
§ 3409(c).13 It “shall state the time when and the place where
such claim arose” and “the nature of same,” and must also be
“verified.” Id. § 3410.

Less than a month after the shooting, the Family
served the following notice on the Governor and Attorney
General:

Re: Action for Personal
Injury and Civil Rights
Violations pursuant to 42
U.S.C. § 1983 against the
Government of the
Virgin Islands, Superior
Court of the Virgin
Islands and Marshal Carl
Richardson
...

13
While the statute states that a claimant need not file
a notice of intention if she files the claim itself within the
ninety-day period, it is undisputed that Russell did not file a
claim within ninety days, and she was therefore required to
file a notice of intention.

28
 Notice of intent is hereby
given to file a claim in accordance
with 33 V.I.C. § 3410 against
Government of the Virgin Islands,
the Superior Court of the Virgin
Islands and Superior Court
Marshal Carl Richardson on
behalf of Jamila Russell,
individually and as next of kin to
[L.T.], a minor, for personal
injuries and civil rights violations.
On July 11, 2013, [L.T.], while in
his home was shot by a Superior
Court Marshal who exercised
unnecessary use of force, and
caused serious personal injury to
[L.T.], a minor. The minor, [L.T.]
had to be airlifted to a medical
facility in San Juan, Puerto Rico
for further treatment. As a result
of the incident, [L.T.] is not [sic] a
quadriplegic who will require
lifelong medical care and
treatment as he is unable to
breathe on his own. The damages
in this case exceed the statutory
cap herein.

JA 30. In the bottom-left corner of the notice was a notary’s
stamp and signature.

Despite that accurate preview of the forthcoming
complaint, Appellants decry “numerous defects,” Reply Br. 9,

29
chief among them that the notice allegedly contains “no facts
alleged or notice provided as to any of th[e tort] claims,”
Appellants’ Br. 33. Citing Fleming v. Cruz, 62 V.I. 702,
718–19 (2015), Appellants say these defects are “fatal”
because the VITCA requires “strict[] compl[iance].”
Appellants’ Br. 32.

Neither assertion is accurate. To start with, Appellants
misstate the relevant standard. As the District Court correctly
recognized, the Virgin Islands Supreme Court has made clear
that “substantial compliance with [the VITCA] is all that is
required.” Brunn, 59 V.I. at 910. The statute’s purpose, after
all, is “not to hamper and harass the claimant” but merely to
give the Government and relevant officers “prompt notice of
the damages or injuries and the surrounding circumstances in
order that the matter might be investigated and . . . liability
determined.” Id. “If the notice is sufficiently definite to
inform the officers . . . of the time and cause of claimant’s
injuries or damages, it should be upheld.” Id. (brackets
omitted). Fleming is not to the contrary, as that case held
only that the VITCA’s filing deadlines are construed strictly,
62 V.I. at 718, and it is beyond dispute that the notice here
was timely filed.

Moreover, even if strict compliance were required, the
Family’s notice would pass muster as we perceive no
requirement imposed by the plain text of § 3410 with which
the Family did not comply. But Appellants do—eleven of
them, to be precise. Yet none is even colorable. Appellants
state, for example, that the notice “does not provide a time or
place where the alleged incident occurred,” “does not identify
. . . Russell as filing a claim on behalf of . . . [L.T.],” is “not
verified,” and lacks a “receipt . . . confirming [its] filing” with

30
the Governor. Appellants’ Br. 40–42. The Family’s notice,
however, plainly states that L.T. was shot “[o]n July 11,
2013” in his “home” (the “time” and “place” where the claim
arose); it asserts that it is filed “on behalf of Jamila Russell,
individually and as next of kin to [L.T.], a minor, for personal
injuries and civil rights violations”; it is verified by a notary’s
stamp and signature;14 and it is accompanied by certified mail
receipts showing it was served on the Governor and Attorney
General.

Other alleged deficiencies are premised on
“requirements” of Appellants’ own invention—such as an
alleged failure to mention specific tort theories by name,
although the Virgin Islands Supreme Court has held it is “not
necessary” for the notice to “provide a precise legal theory
upon which recovery is sought,” Brunn, 59 V.I. at 910, or an
alleged error in Russell describing herself as her son’s “next

14
With respect to verification, Appellants’ counsel
declared for the first time at oral argument that the term, as
used in the VITCA, means something other than notarization.
But he offered no authority for that proposition; in fact, the
only case Appellants cite having anything to do with
verification cuts against them, as the court there deemed the
claim unverified for “lack of a notarization.” McBean v.
Gov’t of Virgin Islands, 19 V.I. 383, 386 (Terr. Ct. 1983).
Consistent with normal legal usage and in the absence of
other authority, we consider the requirement that the notice be
“verified” as satisfied by proof it was notarized. See
Verification, Black’s Law Dictionary (10th ed. 2014) (“A
formal declaration made in the presence of an authorized
officer, such as a notary public[.]”).

31
of kin” because he is not deceased, although Appellant offers
no authority for the proposition that the use of the term is so
limited. Appellants also nitpick what are obviously
typographical errors, such as recitation of Richardson’s first
name as “Carl” instead of “Chris” or of L.T.’s status as “not a
quadriplegic” instead of “now a quadriplegic.” We will not
deny jurisdiction on the basis of such quibbles when the
Family’s notice was “sufficiently definite to inform the
officers . . . of the time and cause of claimant’s injuries or
damages.” Brunn, 59 V.I. at 910.15

15
By plucking from its context Brunn’s statement that
a “failure to make any reference, let alone any meaningful
reference, to the allegedly negligent actions of the
Government” renders a notice insufficient, Appellants’ Br. 35
(quoting 59 V.I. at 911), Appellants ignore just how closely
Brunn tracks the history of this case. The notice in Brunn
alleged that a woman had been killed by a police officer and
stated an intent to sue the police department for negligent
selection, training, and supervision. 59 V.I. at 909. But
because as to those claims—as opposed to other kinds of
potential claims against the department or the individual
officer—the notice alleged only that the department had
“employed” the officer at the time of the shooting, the court
deemed it insufficient because it contained no “reference . . .
to the allegedly negligent actions of the Government.” Id. at
911. If that sounds familiar, it should: The District Court here
likewise found the Family’s notice insufficient as to the
claims for negligent hiring, retention, and supervision and
dismissed them. See supra note 5. But here, unlike in Brunn,
the Family also brought claims against the individual official,
and the factual allegations it makes in support of those
claims—and thus in support of the vicarious liability that

32
 Appellants fare no better with their contention that the
District Court erred in finding that the Family filed a timely
claim. The VITCA requires that a plaintiff, after filing her
notice, file a “claim” within two years after the claim accrued,
V.I. Code Ann. tit. 33, § 3409(c), which must include, in
addition to the information required by the notice, the “items
of damage of injuries claimed to have been sustained and the
total sum claimed,” id. § 3410. So what is the alleged
deficiency in the Family’s claim? According to Appellants,
the Family did not file one, because “a [c]omplaint is not the
same thing as a ‘claim’ under the VITCA,” Reply Br. 15, and
“[p]lenty of case law says that,” Oral Arg. at 38.14–.24,
http://www2.ca3.uscourts.gov/oralargument/audio/17-
2255_Russellv. SuperiorCourtVI.mp3.

This appears yet another misstatement to this Court.
As our precedent makes clear, “where a complaint is timely
filed under the [VITCA] with the proper parties having been
served and contains all of the necessary substantive
requirements . . . [,] the complaint suffices as a ‘claim.’”
Albert v. Abramson’s Enters., Inc., 790 F.2d 380, 383 (3d Cir.
1986), as amended (May 23, 1986).16 Appellants, however,
direct us to Gonzalez v. Stevens, No. 82-191, 1983 WL

would extend to the Virgin Island Superior Court under the
VITCA, see Bonelli, 2015 WL 1407259, at *5; supra note
5—render the notice sufficient.
16
Appellants inaccurately cite Albert for the
proposition that generally a notice of intent does not
constitute a claim.

33
889445, at *2 & n.2 (D.V.I. Mar. 22, 1983), and Mercer v.
Government of Virgin Islands, 18 V.I. 171, 174 n.1, 179–80
(Terr. Ct. 1982)—cases that not only do not bind us and pre-
date Albert, but also cannot bear the weight Appellants place
on them. Gonzalez distinguished a claim from a complaint
only to make clear that a claim “need not” have the
“particularity required of a civil complaint,” 1983 WL
889445, at *2, and Mercer actually rested its analysis on the
assumption that a complaint could be “considered to be a
‘claim,’” 18 V.I. at 179.

In short, Albert controls, and the claim filed by the
Family, like the notice of intent, complied with the VITCA.17
We will therefore affirm the District Court’s decision denying
Appellants sovereign immunity in all respects but one: The
complaint included a claim for gross negligence, but, as the
Family conceded at oral argument, the VITCA provides that
its waiver “shall not apply if the injury . . . is caused by the
gross negligence of an employee of the Government.” V.I.
Code Ann. tit. 33, § 3408(b). Although the District Court
declined to entertain this argument because it was not raised
by the Superior Court until its reply brief below, the “terms of
the [Virgin Islands’ waiver of sovereign immunity] are
jurisdictional” and therefore “may not be waived.”
Richardson, 744 F.2d at 1010. Thus, the gross negligence
claim should have been dismissed.

17
The Family’s complaint met all the requirements of
Albert, and Appellants do not contend otherwise.

34
IV. Conclusion

For the foregoing reasons, we will affirm the order of
the District Court, except as to gross negligence, and will
remand for proceedings consistent with this opinion.

35