Gonzalez, Gonzalez, Gonzalez v. Reno, Meissner, Holder, Mills, INS Agent

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 25, 2003
No. 01-14475 THOMAS K. KAHN
CLERK

D.C. Docket No. 00-03621-CV-SH

LAZARO GONZALEZ, ANGELA
GONZALEZ, MARISLEYSIS GONZALEZ,

Plaintiffs-Appellees,

versus

JANET RENO, DORIS MEISSNER,
ERIC HOLDER,

Defendants-Appellants,

BETTY A. MILLS, INS Agent, et al.,

Defendants.

____________

Appeal from the United States District Court
for the Southern District of Florida

(March 25, 2003)
Before TJOFLAT, COX and BRIGHT*, Circuit Judges.

TJOFLAT, Circuit Judge:

In this case, we must decide whether former Attorney General Janet Reno,

former Commissioner of the Immigration and Naturalization Service (“INS”)

Doris Meissner, and former Deputy Attorney General Eric Holder are entitled to

qualified immunity for their alleged involvement in the seizure of Elian Gonzalez

(“Elian”) from the home of Lazaro, Angela, and Marisleysis Gonzalez (“the

Gonzalezes”) – Elian’s great-uncle, great-aunt, and cousin – on April 22, 2000.

The defendants asserted their qualified immunity defense in a motion to dismiss,

which the district court denied. We now reverse.

On September 28, 2000, the Gonzalezes commenced this action under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), by filing a complaint for damages

against Attorney General Janet Reno, in her individual capacity; INS
Commissioner

____________________

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*Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
Doris Meissner, in her individual capacity; Deputy Attorney General Eric Holder,

in his individual capacity; INS agent Betty Mills; an unknown number of INS

agents whose names are not known; an unknown number of U.S. Border Patrol

agents whose names are not known; and an unknown number of U.S. Marshals

whose names are not known.1 In their complaint, the Gonzalezes allege the

following facts. On November 25, 1999, six-year-old Elian Gonzalez, a Cuban

boy, was found floating on an innertube off the coast of Fort Lauderdale, Florida.

The Coast Guard brought Elian into the United States, and the INS paroled him

into the country without inspection, then released him into the custody of his

great-uncle, Lazaro Gonzalez (“Lazaro”). Lazaro filed a petition with the INS on

behalf of Elian seeking political asylum for the child. Elian also filed a petition

for asylum on his own behalf.

On January 5, 2000, INS Commissioner Meissner decided that the INS

would not consider the requests for asylum because Elian’s father, a Cuban

citizen, had requested that Elian be returned to Cuba. On January 7, 2000, Lazaro

1
The Gonzalezes’ complaint also asserts claims against William O’Brien, individually
and in his official capacity as Chief of the City of Miami Police Department; John Brooks,
individually and in his official capacity as Assistant Chief of the City of Miami Police
Department; and the City of Miami. The district court addressed these defendants’ motions to
dismiss in an order dated April 16, 2001, which is not before us in this appeal.

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filed a petition for temporary custody of Elian in the Family Division of the

Circuit Court for Miami-Dade County, which was granted pending a full hearing

on the matter.

On January 12, 2000, Attorney General Reno affirmed Meissner’s decision

not to consider the petitions for political asylum. Lazaro challenged Reno’s ruling

in the United States District Court for the Southern District of Florida, and the

court upheld Reno’s decision. Lazaro appealed to this court. See Gonzalez v.

Reno, No. 00-1124-D, (11th Cir. Apr. 19, 2000) (unpublished opinion).

On April 6, 2000, while that appeal was pending, Elian’s father arrived in

the United States. On April 12, 2000, the INS instructed Lazaro to bring Elian to

Opa Locka Airport, and advised Lazaro that the parole of Elian into his care was

being transferred to Elian’s father. On April 13, 2000, the circuit court dismissed

Lazaro’s petition for temporary custody and vacated its prior order granting

temporary custody to Lazaro.

On April 19, 2000, a panel of this court entered an order enjoining Elian

from departing, or attempting to depart, the United States; enjoining all persons

acting on his behalf from aiding, or assisting or attempting to aid or assist, Elian’s

removal from the United States; and enjoining all officers, agents, and employees

of the United States to take such reasonable and lawful measures as necessary to

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prevent the removal of Elian from the United States. Gonzalez, supra. On April

20, 2000, the Gonzalezes began negotiations with Reno, Meissner, and Holder

toward the goal of transferring temporary custody of Elian.

Even though it was purporting to negotiate a peaceful transfer of the child,

the INS issued an administrative warrant for Elian’s arrest on April 21, 2000. The

arrest warrant asserted that Elian was within the United States in violation of the

immigration laws and could therefore be taken into custody. The INS then

obtained a search warrant to enter the Gonzalezes’ home and search for Elian.

At approximately 5:15 a.m. on April 22, 2000, armed federal agents arrived

at the Gonzalezes’ residence to execute the search and arrest warrants. In the

course of executing the warrants, the agents allegedly sprayed gas into the

residence; broke down the front door with a battering ram and entered the

residence without first announcing their presence; sprayed more gas; pointed guns

at the occupants of the residence, threatening to shoot; shouted obscenities; and

broke doors, furniture, and religious artifacts. As one federal agent pointed a

weapon at one of the occupants and Elian, INS agent Betty Mills entered the room

with a blanket and seized the child.

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Based on the foregoing factual allegations, the Gonzalezes claim in their

complaint that the defendants violated their First Amendment rights of freedom of

expression and assembly (Count I), their Fourth Amendment rights to be free from

unreasonable searches and seizures (Count II), and their Fifth Amendment rights

to a liberty interest in personal security and to be free from unnecessary and

unreasonable force (Count III). The complaint also claims that the defendants

conspired to violate each of these constitutional rights (Counts IV-VI).

Defendants Reno, Meissner, Holder, and Mills moved to dismiss the claims

against them arguing that plaintiffs' complaint failed to state a claim against them

and that they were entitled to qualified immunity from damages claims in their

individual capacity. The district court addressed the defendants’ motion to

dismiss in an order dated June 5, 2001.

The court dismissed Count I of the complaint without prejudice after

concluding that the Gonzalezes failed to allege any facts supporting their theory

that the federal agents’ entry into their home was undertaken for the purpose of

abridging their First Amendment rights. The court dismissed Count III with

prejudice after the Gonzalezes conceded in their response that their excessive

force claims should be analyzed under Fourth Amendment search and seizure

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analysis rather than Fifth Amendment substantive due process analysis. The court

also dismissed the conspiracy claims in Counts IV-VI.

With respect to the Gonzalezes’ Fourth Amendment claims in Count II, the

court held that the Gonzalezes lacked standing to challenge the validity of the

administrative arrest warrant. The court dismissed the Gonzalezes’ Fourth

Amendment claims challenging the validity of the search warrant after concluding

that the warrant was valid because the magistrate who issued it was presented with

a facially valid arrest warrant and an affidavit establishing probable cause to

believe that Elian was in the Gonzalezes’ home. The court dismissed Betty Mills

as a defendant without prejudice because the complaint contained no allegations of

excessive force by her. The court denied the motion to dismiss with respect to the

excessive force claims against the other federal agents because it found that the

Gonzalezes had alleged sufficient facts to support their claim that the federal

agents (other than Mills) who executed the warrant at their home used excessive

force, in violation of their Fourth Amendment rights.

The court also denied the motion to dismiss with respect to the defense of

qualified immunity. The court concluded that the complaint alleged the requisite

“causal connection” between the supervisory actions of Reno, Meissner, and

Holder and the alleged constitutional violation by the agents on the scene to hold

7
them liable based on their supervisory status, notwithstanding their absence from

the scene. The court based this finding on paragraphs 70 and 75 of the complaint,

which alleged that Reno, Meissner, and Holder “personally directed and caused a

paramilitary raid upon Plaintiffs’ residence” and that the agents on the scene

“acted under the personal direction of Defendants JANET RENO, DORIS

MEISSNER AND ERIC HOLDER.”

Reno, Meissner, and Holder now appeal, challenging the district court’s

rejection of their qualified immunity defense. We reverse.

II.

We have jurisdiction to review the denial of the defense of qualified

immunity on interlocutory appeal pursuant to 28 U.S.C. § 1291. Mitchell v.

Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985). A

district court’s decision to grant or deny the defense of qualified immunity is a

question of law which we review de novo, accepting the factual allegations in the

complaint as true and drawing all reasonable inferences in the plaintiff’s favor.

Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001).

The defense of qualified immunity completely protects government officials

performing discretionary functions from suit in their individual capacities unless

their conduct violates “clearly established statutory or constitutional rights of

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which a reasonable person would have known.” Hope v. Pelzer, ___ U.S. ___,

122 S. Ct. 2508, 2515, 153 L. Ed. 266 (2002) (quoting Harlow v. Fizgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (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, protecting from

suit 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 citation and

quotation omitted). Because qualified immunity is “an entitlement not to stand

trial or face the other burdens of litigation,” Mitchell, 472 U.S. at 526, 105 S. Ct.

at 2815, questions of qualified immunity must be resolved “at the earliest possible

stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116

L. Ed. 2d 589 (1991) (per curiam). It is therefore appropriate for a district court to

grant the defense of qualified immunity at the motion to dismiss stage if the

complaint “fails to allege the violation of a clearly established constitutional

right.” Chesser, 248 F.3d at 1121 (quoting Williams v. Ala. State Univ., 102 F.3d

1179, 1182 (11th Cir. 1997).

To receive qualified immunity, the government official must first prove that

he was acting within his discretionary authority. Vinyard v. Wilson, 311 F.3d

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1340, 1346 (11th Cir. 2002). Here, it is clear – and undisputed – that defendants

Reno, Meissner, and Holder acted within their discretionary authority.

Once the defendants have established that they were acting within their

discretionary authority, the burden shifts to the plaintiffs to show that qualified

immunity is not appropriate. Id. The Supreme Court has set forth a two part

analysis for determining whether qualified immunity is appropriate. Saucier v.

Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed 2d 272 (2001). The

court must first ask “this threshold question: Taken in the light most favorable to

the party asserting the injury, do the facts alleged show the officer’s conduct

violated a constitutional right?” Id. “[I]f a violation could be made out on a

favorable view of the parties’ submissions, the next, sequential step is to ask

whether the right was clearly established.” Id.

Our first step, then, is to determine whether the factual allegations in the

complaint, if true, establish a constitutional violation by Reno, Meissner, and

Holder. Id. The district court properly characterized the complaint as alleging

that Reno, Meissner, and Holder are liable in their supervisory capacities only.

For purposes of this opinion, therefore, we will assume, without deciding, that the

alleged conduct by the agents on the scene – spraying gas into the house, breaking

down the front door, pointing guns at plaintiffs, and damaging property –

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constituted excessive force and deprived plaintiffs of their Fourth Amendment

rights to be free from unreasonable searches and seizures. See Hartley v. Parnell,

193 F.3d 1263, 1268-69 (11th Cir. 1999) (in section 1983 sexual abuse case,

assuming, without deciding, that male teacher deprived female student of

substantive due process rights, then proceeding with the analysis to determine

whether principal caused that deprivation). This leaves us with the task of

deciding whether the defendants’ supervisory actions caused the alleged

deprivations of plaintiffs’ Fourth Amendment rights.

“It is well established in this circuit that supervisory officials are not liable

under [Bivens] for the unconstitutional acts of their subordinates ‘on the basis of

respondeat superior or vicarious liability.’ ” Id. at 1269 (quoting Belcher v. City of

Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)). “The standard by which a supervisor

is held liable in her individual capacity for the actions of a subordinate is

extremely rigorous.” Braddy v. Florida Dept. of Labor and Employment Security,

133 F.3d 797, 802 (11th Cir.1998). Supervisors “can be held liable under

[Bivens] when a reasonable person in the supervisor’s position would have known

that his conduct infringed the constitutional rights of the plaintiffs, and his

conduct was causally related to the constitutional violation committed by his

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subordinate.” Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990) (citations and

footnote omitted).

“Supervisory liability [under Bivens] occurs either when the supervisor

personally participates in the alleged constitutional violation or when there is a

causal connection between actions of the supervising official and the alleged

constitutional violation.” Braddy, 133 F.3d at 802 (quoting Brown v. Crawford,

906 F.2d 667, 671 (11th Cir. 1990)). A causal connection can be established

“when a history of widespread abuse puts the responsible supervisor on notice of

the need to correct the alleged deprivation, and he fails to do so,” id., or when the

supervisor’s improper "custom or policy . . . resulted in deliberate indifference to

constitutional rights,” Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). A

causal connection can also be established by facts which support an inference that

the supervisor directed the subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop them from doing so. See

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1561 (11th Cir. 1993) (finding no

supervisory liability in the absence of such an inference).

In examining the factual allegations in the complaint, we must keep in mind

the heightened pleading requirements for civil rights cases, especially those

involving the defense of qualified immunity. GJR Investments, Inc. v. County of

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Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998). The complaint must allege the

relevant facts “with some specificity.” Id. “[M]ore than mere conclusory notice

pleading is required. . . . [A] complaint will be dismissed as insufficient where the

allegations it contains are vague and conclusory.” Fullman v. Graddick, 739 F.2d

553, 556-57 (11th Cir. 1984). See also Veny v. Hogan, 70 F.3d 917, 922 (6th Cir.

1995) (holding that complaint must “include the specific, non-conclusory

allegations of fact that will enable the district court to determine that those facts, if

proved, will overcome the defense of qualified immunity”). Moreover, in

reviewing a motion to dismiss, we need only accept “well-pleaded facts” and

“reasonable inferences drawn from those facts.” Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992). “[U]nsupported conclusions

of law or of mixed fact and law have long been recognized not to prevent a Rule

12(b)(6) dismissal.” Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir.

2001). We must also keep in mind the fact that “[w]e generally accord . . . official

conduct a presumption of legitimacy.” United States Dep't of State v. Ray, 502

U.S. 164, 179, 112 S. Ct. 541, 550, 116 L. Ed. 2d 526 (1991).

We now turn to the complaint to determine whether plaintiffs have alleged

sufficient facts to establish supervisory liability. Plaintiffs allege that these

defendants “personally directed and caused a paramilitary raid upon [their]

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residence, and had actual knowledge of, and agreed to, and approved of, and

acquiesced in, the raid in violation of the Fourth Amendment rights of Plaintiffs

herein.” Plaintiffs also allege that the agents on the scene “acted under the

personal direction of Defendants, JANET RENO, DORIES MEISSNER and ERIC

HOLDER, and with the knowledge, agreement, approval, and acquiescence of

Defendants, JANET RENO, DORIS MEISSNER and ERIC HOLDER.” Finally,

plaintiffs allege that these defendants “personally participated in the constitutional

violations, and there was clearly a causal connection between their actions and the

constitutional deprivation.”

These vague and conclusory allegations do not establish supervisory

liability. Plaintiffs make bold statements and legal conclusions without alleging

any facts to support them. Plaintiffs appeal to the emotions by calling the events

that transpired a paramilitary raid, but they do not allege any facts to suggest that

the defendants did anything more than personally direct and cause the execution of

valid search and arrest warrants. Plaintiffs state that there is a causal connection

between these defendants’ acts and the excessive force used by the agents on the

scene, but they do not allege any facts to support this causal connection. Plaintiffs

do not allege that these defendants directed the agents on the scene to spray the

house with gas, break down the door with a battering ram, point guns at the

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occupants, or damage property. Given the presumption of legitimacy accorded to

official conduct, it would be unreasonable to draw from the alleged facts the

inference that the supervisory defendants directed the agents on the scene to

engage in the unconstitutional activity with which they are charged. Instead, the

reasonable inference which we must draw from the factual allegations is that the

supervisory defendants ordered the execution of valid search and arrest warrants

with the expectation that the agents on the scene would execute them in a lawful

manner.

In sum, plaintiffs allege that the agents on the scene used excessive force in

violation of their Fourth Amendment rights, but they fail to allege any facts which,

if true, would establish that the supervisory defendants caused that violation.

Because plaintiffs have failed to allege that the supervisory defendants’ conduct

constituted a constitutional violation, the supervisory defendants are entitled to

qualified immunity under the first step in our qualified immunity analysis. The

decision of the district court is therefore REVERSED.

SO ORDERED.