USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 21-10397
Non-Argument Calendar
________________________
D.C. Docket No. 4:20-cv-00134-ELR
DUSTIN ORR,
Plaintiff - Appellant,
versus
DEPUTY JAMES ROGERS,
DEPUTY JOHNATHAN BRANNON,
DEPUTY GEORGE WOOTEN,
LARRY STAGG,
STAGG LAW FIRM, LLC,
SUMMER ORR,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 8, 2021)
Before BRANCH, GRANT and MARCUS, Circuit Judges.
PER CURIAM:
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 2 of 12
Dustin Orr appeals from the district court’s grant of a motion to dismiss in
favor of Deputies James Rogers, Johnathan Brannon, and George Wooten
(collectively, “the Deputies”) for failure to state a claim upon which relief can be
granted under Fed. R. Civ. P. 12(b)(6). Orr brought this suit under 42 U.S.C. § 1983
for an alleged violation of his Fourth and Fourteenth Amendment rights. His
allegations stem from the Deputies’ execution of a court order -- at the home of Orr
and his wife, Summer Orr, who had filed for divorce -- that instructed the Deputies
to search Orr and seize certain property and turn it over to Summer Orr. On appeal,
Orr argues that the district court erroneously dismissed his Fourth Amendment claim
for failure to state a claim upon concluding that the Deputies were entitled to
qualified immunity because they did not violate a clearly established right. After
careful review, we affirm.
The relevant background, for purposes of reviewing the grant of the Deputies’
motion to dismiss, is this. On April 9, 2019, Summer Orr’s attorney filed a complaint
for divorce in the Superior Court of Catoosa County, Georgia. Along with the
complaint, the attorney submitted a proposed order that would, in part, require a
deputy or other process server to frisk Orr and seize any monetary funds over $200
and turn them over to Summer Orr. This included money in Orr’s wallet, though
Orr would be allowed to keep his driver’s license, credit cards, and “anything else
other than cash, money order(s) or Cashier’s checks.” The proposed order also
2
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 3 of 12
instructed Orr to turn over certain property to Summer Orr. That same day,
following an ex parte hearing, a superior court judge signed the proposed order. The
order provided that it was issued “UPON CONSIDERATION of evidence presented
on this date and for good cause shown.”
The next day, the Deputies served Orr with the divorce summons and
complaint, along with the ex parte order. According to Orr, Summer Orr still lived
with him, and she allowed the Deputies to enter the home. At least one of the
Deputies told Orr that if he did not comply with the search, he would be arrested and
taken into custody. The Deputies searched Orr and seized about $19,000 in cash and
keys to three vehicles, which they gave to Summer Orr. Orr was left with $200. In
his complaint, Orr alleged that “[t]he Deputies, acting in concert, relied on the
language contained in the Order in conducting the search of Mr. Orr’s person, the
seizure of his property, and the transfer of possession of said property to Mrs. Orr.”
Thereafter, Orr brought this suit against the Deputies, claiming that they had
conducted an unreasonable search of his person and seizure of his property, in
violation of the Fourth and Fourteenth Amendment.1 He argued that the Deputies
lacked probable cause and that the order was facially invalid and no reasonable
officer could have reasonably relied on it. The district court granted the Deputies’
1
Orr asserted other federal and state law claims against the Deputies and other defendants in his
complaint, but only challenges the dismissal of his Fourth Amendment claim on appeal.
3
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 4 of 12
motion to dismiss, finding that they were entitled to qualified immunity because Orr
had not alleged a violation of a clearly established right. This timely appeal follows.
We review the grant of qualified immunity at the motion to dismiss stage de
novo. Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019). “We are required to
accept all allegations in the complaint as true and draw all reasonable inferences in
the plaintiff’s favor.” Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019).
“Our review is limited to the four corners of the complaint.” Id. (quotations omitted).
Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “The purpose of this immunity is to allow
government officials to carry out their discretionary duties without the fear of
personal liability or harassing litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002). “Because qualified immunity protects officials from suit as well as
liability, courts must determine the validity of a claimed qualified immunity defense
at the earliest possible time.” Sebastian, 918 F.3d at 1307.
Under the well-defined qualified immunity framework, a “public official must
first prove that he was acting within the scope of his discretionary authority when
the allegedly wrongful acts occurred.” Lee, 284 F.3d at 1194 (quotations omitted).
Since there is no dispute that the Deputies were acting within the scope of their
4
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 5 of 12
discretionary authority during the search and seizure, the burden shifts to Orr to show
that qualified immunity is not warranted. Id. To do so, Orr must prove both that the
allegations in the complaint, accepted as true, establish a constitutional violation and
that the constitutional violation was “clearly established.” Keating v. City of Miami,
598 F.3d 753, 762 (11th Cir. 2010). These two requirements may be analyzed in
any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“[C]learly established law consists of holdings of the Supreme Court, the
Eleventh Circuit, or the highest court of the relevant state.” Sebastian, 918 F.3d at
1307. While a case need not be “directly on point for a right to be clearly established,
existing precedent must have placed the statutory or constitutional question beyond
debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quotations omitted). “In
other words, immunity protects all but the plainly incompetent or those who
knowingly violate the law.” Id. (quotations omitted). For this reason, the Supreme
Court repeatedly has instructed the courts “not to define clearly established law at a
high level of generality.” Id. (quotations omitted). Instead, the dispositive question
is “whether the violative nature of particular conduct is clearly established.”
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotations omitted). “This inquiry must
be undertaken in light of the specific context of the case, not as a broad general
proposition. Such specificity is especially important in the Fourth Amendment
context, where the Court has recognized that it is sometimes difficult for an officer
5
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 6 of 12
to determine how the relevant legal doctrine . . . will apply to the factual situation
the officer confronts.” Id. (quotations and citations omitted, alteration adopted).
Under the case law, Orr could have demonstrated that the contours of his
Fourth Amendment right were clearly established in three ways. One of these would
be by showing that “a materially similar case has already been decided.” Terrell v.
Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (quotations omitted). Orr could instead
have pointed to a “broader, clearly established principle that should control the novel
facts of the situation.” Id. (quotations omitted, alterations accepted). Finally, Orr
could have shown that the officers’ conduct “so obviously violate[d] the constitution
that prior case law is unnecessary.” Id. (quotations omitted, alterations accepted).
On the record before us, the district court did not err in holding that Orr failed
to allege that the Deputies violated clearly established law when they executed the
ex parte order by searching Orr and seizing and redistributing his property. As the
parties seem to agree, the order was issued by a state superior court judge pursuant
to Ga. Code § 19-13-4(8), which allows courts to grant protective orders that
“[p]rovide for possession of personal property of the parties.” There is no allegation
that the Deputies seized items that were not on the list proscribed by the order, nor
that they otherwise acted outside of the scope of the order. And we can find nothing
in the Georgia Code or elsewhere in the case law that would have put the Deputies
on notice that re-distributing marital funds in accordance with a court order would
6
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 7 of 12
violate a plaintiff’s Fourth Amendment rights. Indeed, even Orr appears to concede
that no case “materially similar” to this one exists.
As for whether there is a “broader, clearly established principle” controlling
this case, again we can find none. The cases Orr cites instead stand for the
proposition that an officer’s reliance on a warrant must be objectively reasonable,
and in some cases, a warrant may be facially invalid. See Groh v. Ramirez, 540 U.S.
551, 563 (2004) (holding that where a warrant did not particularly describe the items
to be seized, no reasonable officer could believe that the warrant was valid); Malley
v. Briggs, 475 U.S. 335, 344–45 (1986) (holding that an officer is not entitled to
qualified immunity where his warrant application “is so lacking in indicia of
probable cause as to render official belief in its existence unreasonable”); United
States v. Leon, 468 U.S. 897, 922–23 (1984) (“[T]he officer’s reliance on the
magistrate’s probable-cause determination and on the technical sufficiency of the
warrant he issues must be objectively reasonable . . . and it is clear that in some
circumstances the officer will have no reasonable grounds for believing that the
warrant was properly issued.”) (citations and footnotes omitted); Harlow, 457 U.S.
at 815–19; Camara v. Mun. Ct. of City & Cty. of San Francisco, 387 U.S. 523, 528–
29 (1967). But, as we’ve explained, the ex parte order in this case was not a warrant
7
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 8 of 12
at all; the order was issued by a superior court judge pursuant to a statute authorizing
protective orders, Ga. Code. § 19-13-4.2
Orr argues, nevertheless, that it was clearly established that the Deputies could
not search him and seize his property pursuant to the order, citing State v. Burgess,
826 S.E.2d 352 (Ga. App. 2019). We disagree. For starters, Burgess is an opinion
of the Georgia Court of Appeals, Georgia’s intermediate appellate court, so under
our binding precedent, it cannot clearly establish the law of Georgia. See Sebastian,
918 F.3d at 1307 (“[C]learly established law consists of holdings of the Supreme
Court, the Eleventh Circuit, or the highest court of the relevant state.”); see also
Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (“Under controlling law, the
plaintiffs must carry their burden by looking to the law as interpreted at the time by
the United States Supreme Court, the Eleventh Circuit, or the Florida Supreme
Court.”).
Moreover, even if we consider it, Burgess is distinguishable. There, a superior
court judge invoked Ga. Code §§ 19-3-3 and 19-13-4 to issue an ex parte temporary
protection order (“TPO”), which allowed Burgess’s ex-girlfriend to take personal
property from his home and ordered the sheriff to remove all firearms and explosives
2
Georgia’s warrant statute, by contrast, provides that “[a] search warrant shall not be issued upon
the application of a private citizen or for his aid in the enforcement of personal, civil, or property
rights.” Ga. Code § 17-5-20(b) (emphasis added). As a Georgia court has pointed out, protective
orders issued pursuant to Ga. Code §§ 19-3-3 and 19-13-4 and warrants are two distinct legal
vehicles, with different requirements, and cannot be used interchangeably. State v. Burgess, 826
S.E.2d 352, 358–59 (Ga. App. 2019). Thus, Orr cannot rely on Georgia warrant cases here.
8
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 9 of 12
from the residence. Id. at 354–55. Burgess’s ex-girlfriend also provided law
enforcement with the locations of the firearms and explosives and told them that
Burgess was selling methamphetamine. Id. After the officers discovered
methamphetamine and explosive devices on the premises, Burgess was indicted. Id.
The Georgia Court of Appeals held that the order was not a valid search warrant and
the exclusionary rule applied to the evidence that the officers had seized. Id. at 356–
61.
The court noted that the officers “were aware that they did not have a warrant
to enter the premises.” Id. at 360. Moreover, the order was “at most, limited to
seizing firearms and explosives,” but the officers exceeded the bounds of that order.
Id. The court found that the “officers were engaged in a full-blown search of the
entire premises without a warrant and without any exigencies of circumstance to
support a determination that a warrantless search was reasonable under the
circumstances or that a reasonable officer would believe that she could effectuate
the search without first obtaining a warrant.” Id. at 361.
In Orr’s case, Summer Orr gave her consent to enter her and Orr’s shared
home, and the Deputies, acting within the scope of the order, conducted a search
only of Orr’s person to seize money and car keys. As a result, the events in this case
are more like the fact pattern the court distinguished Burgess from: “a case in which
the officers were merely serving the TPO and providing support for a petitioner’s
9
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 10 of 12
enforcement of her right to her property or to ensure her safety.” Burgess, 826
S.E.2d at 361. And most importantly, this case is unlike Burgess because the
government did not attempt to use the items seized as evidence in a criminal case
against Orr. 3 Burgess simply does not establish a “broader, clearly established
principle” controlling this case that would support Orr’s claim that the violation of
his rights was clearly established.
Nor can we say that the Deputies’ conduct “so obviously violate[d] the
constitution that prior case law is unnecessary” for purposes of establishing that a
right was clearly established. The Deputies relied on a judicial order that permitted
them to search Orr’s person and confiscate a particularized list of items. The
Deputies executed the order and did not take any actions outside of its scope. There
is “[n]o settled Fourth Amendment principle” that requires an officer to second-
guess a judge in this context. White v. Pauly, 137 S. Ct. 548, 552 (2017).
3
Orr says that even though the Deputies seized his property in a civil case, the standards courts
apply in civil and criminal cases are the same so the district court erred by distinguishing Burgess
on the basis that it involved the seizure of evidence of criminal conduct. See Malley, 475 U.S. at
344 (holding “that the same standard of objective reasonableness that we applied in the context of
a suppression hearing . . . defines the qualified immunity accorded an officer whose request for a
warrant allegedly caused an unconstitutional arrest”); Hope v. Pelzer, 536 U.S. 730, 739–40 (2002)
(noting that the standard for determining whether an officer charged under 18 U.S.C. § 242 had
“fair warning” that his conduct deprived an individual of constitutional rights is the same as the
standard for evaluating whether a right was clearly established in civil litigation under 42 U.S.C.
§ 1983). That the same standards might apply in both contexts says nothing about whether Burgess
established a broad, clearly established principle that would apply to cases like this one, that
involves property seized in a divorce case.
10
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 11 of 12
In short, Orr failed to establish that the Deputies were not entitled to qualified
immunity because he did not set forth any constitutional violation that was “clearly
established.” As for his remaining arguments -- in which he cherry picks language
from the district court’s opinion in order to argue that its analysis was faulty -- none
are persuasive. As the record reflects, the district court cited and applied the
appropriate standard to this case, accurately framing the “dispositive question”:
“whether it was clearly established, as a matter of law, that an objective officer could
have concluded it was reasonable to execute the ex parte Order under the particular
circumstances in which the Deputy Defendants acted.” It then went on to address
whether Orr had made a sufficient showing that the violation of his rights was
“clearly established.” As we’ve explained, our case law allows a district court to
resolve a qualified immunity case on the “clearly established” prong alone, so the
district court did not need to address Orr’s underlying claim that his constitutional
rights were violated. See Pearson, 555 U.S. at 236. And contrary to Orr’s claims on
appeal, the district court’s analysis makes clear that it understood Orr’s claim -- that
the search and seizure violated his constitutional rights -- and viewed the facts in the
light most favorable to Orr and considered his claim as he pled it in his complaint.
Moreover, the court properly considered the controlling authority and expressly
discussed “the only comparable cases that [Orr] cite[d] to,” finding them
distinguishable based on the “specific context of [each] case.” Mullenix, 577 U.S.
11
USCA11 Case: 21-10397 Date Filed: 09/08/2021 Page: 12 of 12
at 12. Indeed, as we’ve discussed, none of the authority Orr that relies on -- nor that
we can find -- clearly establishes the violation of a right in this case.4
Accordingly, the district court did not err in dismissing Orr’s Fourth
Amendment claim after concluding that the Deputies did not violate a clearly
established right, and we affirm.
AFFIRMED.
4
Finally, we decline to consider Orr’s argument that Ga. Code § 19-13-4 and other family violence
sections of the Code are unconstitutional, since he did not raise this claim in district court. See
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Orr also says that
the Code requires an ex parte order to be based on “the filing of a verified petition in which the
petitioner alleges with specific facts that probable cause exists to establish that family violence has
occurred in the past and may occur in the future.” Ga. Code § 19-13-3(b). But he cites no authority
requiring the petition to be attached to the order in order for officers to reasonably rely on it.
12