Laura Elkins v. DC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2011 Decided August 10, 2012
No. 10-7060
LAURA ELKINS AND JOHN ROBBINS,
APPELLANTS/CROSS-APPELLEES
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES/CROSS-APPELLANTS
Consolidated with No. 10-7069
Appeals from the United States District Court
for the District of Columbia
(No. 1:04-cv-00480)
Roger J. Marzulla argued the cause for appellants/cross-
appellees. With him on the briefs was Nancie G. Marzulla.
Stacy Anderson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees/cross-appellants. With her on the briefs
were Irvin B. Nathan, Attorney General, Todd S. Kim,
Solicitor General, and Donna M. Murasky, Deputy Solicitor.
Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,
Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Laura Elkins and her husband
John Robbins brought suit against the District of Columbia
and some of its officials alleging violations of the Fourth and
Fifth Amendments. For the reasons set forth below, we
conclude that the District and its officials were entitled to
summary judgment on all the plaintiffs’ claims.
I
In 2001, Laura Elkins1 decided to renovate her home in
Northeast Washington, D.C. Because the house is in the
Capitol Hill Historic District, Elkins needed building permits
from the District’s Department of Consumer and Regulatory
Affairs (DCRA), which regulates building construction in the
District, and the Historic Preservation Office (HPO), which is
charged with protecting the city’s historic structures. Elkins
obtained permits, but once construction began her neighbors
complained. In March 2002, one of them sued Elkins and the
District in D.C. Superior Court seeking to halt the renovation.
The court dismissed the suit, concluding that the permits were
valid. In doing so, the court relied largely on testimony from a
DCRA official.
Despite the court’s ruling, three other District officials,
Denzil Noble, Acting Administrator of the Building and Land
Regulation Administration within the DCRA, his predecessor
J. Gregory Love, and David Maloney, Acting Director of
1
Throughout this litigation, the parties have referred to Elkins
and Robbins collectively as Elkins. We adopt that convention as
well.
3
HPO, still questioned whether the permits were valid and
suspected that the construction exceeded their scope. Largely
due to their concerns, the District issued four stop work
orders2 and several times requested that Elkins submit revised
building plans to reflect the work being done. Elkins
disregarded the orders and refused to submit any revised
plans. On May 16, 2002, Love, with Maloney and Noble
present, instructed Vincent Ford, DCRA’s chief building
inspector, to “‘find a way’ to stop work” at Elkins’s home.
Ford Decl. ¶ 20. The next day, Ford issued Elkins a notice of
violation of a stop work order. See D.C. MUN. REGS. tit. 12A,
§ 113.2. Elkins and the District officials continued to clash
over the type of permits and building plans necessary to
authorize continued construction for several months. On
March 10, 2003, Noble sent a letter requesting an on-site
inspection, but Elkins refused. In response, DCRA sought
from Superior Court an administrative search warrant to
inspect Elkins’s home for evidence of illegal construction.
Noble signed the affidavit in support of the warrant. The
affidavit set forth the grounds for DCRA’s belief that Elkins’s
renovations exceeded the scope of the permits and continued
despite orders that they stop, all in violation of the D.C.
Construction Codes. The Superior Court issued the warrant on
March 26, 2003, authorizing a search at Elkins’s address for
“unlicensed construction work which is in violation of the
Construction Codes.” The warrant said nothing about items to
be seized.
2
A stop work order, which does what its name implies, may
issue if “work on any building, structure or premises is being
performed contrary to the provisions of the Construction Codes, or
the Zoning Regulations or in an unsafe or dangerous manner.” D.C.
MUN. REGS. tit. 12A, § 114.1. Work beyond the scope of a permit
violates the Construction Codes.
4
The next day officers from the Metropolitan Police
Department (MPD) and officials from DCRA and HPO
executed the warrant. The DCRA and HPO officials had no
training in executing a search warrant. In fact, neither agency
had ever conducted a search. After entering Elkins’s home, an
MPD officer announced they had the right to seize all papers
related to the renovation. With that, the party searched the
entire home, looking for documents and rummaging through
closets, drawers, and boxes. The search included the
bedrooms of Elkins’s two sick children who were home from
school. Elkins v. District of Columbia (Elkins I), 527 F. Supp.
2d 36, 41 (D.D.C. 2007). After vigorously protesting the fact
and nature of the search, Elkins produced a notebook
containing construction permits, drawings, invoices, and other
documents related to the renovations that Toni Williams-
Cherry, an HPO inspector assisting DCRA with the search,
took from her. The District returned the notebook to Elkins
three weeks later. Id. In December 2003, the District moved
to revoke Elkins’s building permits in proceedings before the
District’s Office of Administrative Hearings (OAH). Id.In March 2004, while the OAH proceedings were
underway, Elkins brought this suit in federal district court
against the District, the Mayor, Love, Maloney, Noble, and
Williams-Cherry, alleging that the search of her home and the
seizure of her notebook violated the Fourth Amendment. She
also claimed that the defendants’ “outrageous” conduct
trampled her Fifth Amendment due process rights. Elkins
sought millions of dollars in compensatory and punitive
damages from each defendant under 42 U.S.C. § 1983. The
district court stayed the lawsuit pending the outcome of the
administrative proceedings.
In those proceedings, Elkins moved to suppress the
evidence obtained from the search of her home: documents
5
from her notebook, photos taken, and written accounts from
those present during the search. OAH allowed the use of the
photos and reports from the search, ruling the search warrant
valid because there was probable cause to believe the
construction was unauthorized. Pls.’ Mot. for Partial Summ. J.
Ex. 21 (OAH Order on Motion to Suppress), at 15, 22. But
OAH barred the use of the documents from the notebook
because the warrant said nothing about seizing them, or
anything else. Id. at 21-22. After three separate hearings held
over several months, OAH upheld the permits on March 20,
2007, id. Ex. 20 (OAH Final Ruling), at 45-46, in a ruling that
also concluded that Elkins and the District officials had acted
in good faith throughout despite charged accusations of
misconduct coming from both sides. Id. at 21 n.13.
Following the OAH decision, the district court took up
Elkins’s lawsuit again, addressing the parties’ dueling,
updated motions for summary judgment. On December 12,
2007, the district court agreed with the District that Elkins
was collaterally estopped from pursuing her substantive due
process claim because of OAH’s determination that the
District and its officials had acted in good faith. Elkins I, 527
F. Supp. 2d at 50. The district court likewise rejected Elkins’s
procedural due process claim, finding the OAH proceeding
was in fact wholly adequate. Id. at 48-49. Addressing Elkins’s
Fourth Amendment claims, the district court held that both
sides were collaterally estopped from relitigating OAH’s
determinations that the search was lawful and the seizure
unlawful. Id. at 46. The only issue remaining was which, if
any, of the defendants to hold liable for the unlawful seizure
of Elkins’s notebook. See id. at 51-52. Having dismissed the
Mayor from the suit (claims against the Mayor in his official
capacity are treated as claims against the District), the court
rejected the assertion of qualified immunity from the
6
remaining officials and ordered discovery on the issue of
liability. Id. at 51.
Following discovery, the defendants moved again for
summary judgment, arguing that none of them were liable for
the seizure of the notebook. The district court dismissed the
District because Elkins had not properly pled any theory on
which it could be held liable for the seizure, but denied the
motion with respect to the other defendants. Elkins v. District
of Columbia (Elkins II), 610 F. Supp. 2d 52, 58-59 (D.D.C.
2009). On a motion for reconsideration, the court later granted
judgment to Maloney, finding there was no evidence linking
him to the seizure. Elkins v. District of Columbia (Elkins III),
636 F. Supp. 2d 29, 33-35 (D.D.C. 2009). Elkins then filed
her own motion for reconsideration challenging Maloney’s
dismissal from the suit and the application of collateral
estoppel to her Fourth Amendment claim. The court rejected
the motion. Elkins v. District of Columbia (Elkins IV), 685 F.
Supp. 2d 1 (D.D.C. 2010).
Thus, on the eve of trial, all that remained of Elkins’s suit
were her claims that Love, Noble, and Williams-Cherry were
liable for the unlawful seizure of her notebook. To expedite a
final ruling and subsequent appeal, Elkins agreed not to
proceed to trial. Instead, preserving her right to appeal, she
asked the court to enter judgment in her favor against the
remaining defendants, but stipulated that she was entitled to
no more than nominal damages from each. See Elkins v.
District of Columbia (Elkins V), 710 F. Supp. 2d 53, 60
(D.D.C. 2010). Finally, in May 2010, the district court entered
judgment against Noble and Williams-Cherry and assessed
nominal damages of one dollar each, but dismissed Love from
the case, holding that although the evidence against him was
enough to get before a jury, it was insufficient, without a trial,
to establish his liability. Id. at 62, 65.
7
Both parties appealed and we assumed jurisdiction under
28 U.S.C. § 1291. Elkins seeks to reverse the district court’s
grants of summary judgment against her, which would allow
her Fourth and Fifth Amendment claims to go forward against
all of the defendants. Noble and Williams-Cherry seek to
reverse the district court’s grant of summary judgment against
them and ask for entry of summary judgment in their favor.
We review the district court’s grants of summary judgment de
novo. Tate v. District of Columbia, 627 F.3d 904, 908 (D.C.
Cir. 2010). Summary judgment may be granted when the
evidence, viewed in the light most favorable to the
nonmoving party, shows “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 255 (1986). Applying this
familiar standard, and for the reasons below, we grant the
defendants all requested relief.
II
Elkins argues that the district court erred in concluding
that the defendants did not abridge her Fifth Amendment
rights to procedural and substantive due process. Her
argument about procedure, however, suffers from a
fundamental flaw. To state a procedural due process claim, a
complaint must suggest “what sort of process is due.” Doe by
Fein v. District of Columbia, 93 F.3d 861, 869 (D.C. Cir.
1996) (“[O]ne [cannot] allege a procedural due process
violation without even suggesting what sort of process is
due . . . .”). Elkins’s complaint does not. The section of her
complaint titled “Deprivation of Property Without Due
Process” says nothing about the process she claims is due, but
alleges instead that the defendants “deliberately flout[ed]” the
law and “trammeled” Elkins’s property rights by engaging in
“outrageous” conduct. Compl. 6-9. Such allegations may
8
make out a claim for a breach of substantive due process, but
not a violation of procedural due process.
Elkins’s substantive due process claim rests on her
allegations that the stop work orders and search of her home
were made despite valid construction permits. We have
previously held that individuals have a protected property
interest in building permits issued by the District. See 3883
Connecticut LLC v. District of Columbia, 336 F.3d 1068,
1073 (D.C. Cir. 2003). Yet “[o]nce a property interest is
found, . . . the doctrine of substantive due process constrains
only egregious government misconduct.” George Wash. Univ.
v. District of Columbia, 318 F.3d 203, 209 (D.C. Cir. 2003).
The “plaintiff must at least show that state officials are guilty
of grave unfairness,” which requires demonstrating either “a
substantial infringement of state law prompted by personal or
group animus, or a deliberate flouting of the law that
trammels significant personal or property rights.” Silverman
v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988). By contrast,
“[i]nadvertent errors, honest mistakes, agency confusion, even
negligence in the performance of official duties, do not
warrant redress.” Id.Elkins asserts that the defendants knew there was no legal
or factual basis to stop her renovations, pointing to the
decisive testimony of District officials in Superior Court that
the permits were validly issued. But that testimony, credited
as it was by the court, tells only part of the story. OAH later
found that the officials who tried to stop the renovation did so
with a good faith belief that the construction exceeded the
scope of the permits and was inconsistent with the historic
character of the neighborhood. Pls.’ Mot. for Partial Summ. J.
Ex. 20 (OAH Final Ruling), at 21 n.13. The fact that the
initial permits were valid does not mean that later
interventions based on well-founded doubts about the scope
9
of the actual construction are gravely unfair. Moreover, Elkins
does not dispute that she violated one of the permits, a
concession that flatly contradicts her argument that any effort
to stop the construction was gravely unfair. Id. at 46. And
although OAH found that District officials “dueled amongst
themselves” and “sent out mixed messages,” id. at 44, this at
most shows “agency confusion,” not the “grave unfairness”
required for a substantive due process claim.
Elkins also cannot use the search of her home or the
seizure of documents as grounds for a claim under the Fifth
Amendment, but for a different reason. “Where a particular
Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of
government behavior, ‘that Amendment, not the more
generalized notion of “substantive due process,” must be the
guide for analyzing these claims.’” Albright v. Oliver, 510
U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S.
386, 395 (1989)). The remedy for any harm to Elkins from the
search of her home is governed by the Fourth Amendment, to
which we now turn.
III
Elkins maintains that the failure of the warrant to identify
items to be seized made not only the seizure of her notebook
unlawful, but also rendered the entire warrant, and thus the
search itself, invalid. When Elkins first raised this argument
below, the district court held that she could not challenge the
legality of the search because OAH had already ruled it
lawful. Elkins I, 527 F. Supp. 2d at 46. To Elkins’s
subsequent assertion that a “manifestly erroneous” ruling is
not entitled to preclusive effect, the district court replied that,
far from being “manifestly erroneous,” the OAH decision was
10
correct. Elkins IV, 685 F. Supp. 2d at 4-5. We agree and thus
need not consider whether collateral estoppel should apply.
The Fourth Amendment provides, in relevant part: “[N]o
Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” U.S.
CONST. amend. IV. Not only must warrants be based on
probable cause, but “the scope of the authorized search [must
be] set out with particularity.” Kentucky v. King, 131 S. Ct.
1849, 1856 (2011); see also Massachusetts v. Sheppard, 468
U.S. 981, 988 n.5 (1984) (“[A] search conducted pursuant to a
warrant that fails to conform to the particularity requirement
of the Fourth Amendment is unconstitutional.”). Elkins argues
that the warrant used to search her home was void for lack of
particularity because it failed to identify any items to be
seized.
For this argument she relies entirely on Groh v. Ramirez,
540 U.S. 551 (2004). There the Supreme Court ruled a search
to seize firearms unlawful because the warrant described the
defendant’s home as the only “person or property” to be
seized and made no reference whatsoever to the firearms. Id.
at 554. The Court held that the warrant failed the particularity
requirement because it “provided no description of the type of
evidence sought.” Id. at 557. Because the warrant “did not
describe the items to be seized at all,” the Court concluded it
“was so obviously deficient that we must regard the search as
‘warrantless.’” Id. at 558. Elkins seizes upon this statement,
stressing that the warrant in this case also did not describe
items to be seized “at all.”
But Groh cannot mean that every search warrant that fails
to describe items to be seized is invalid. The requirements for
a warrant vary based on the purpose for which it is sought,
11
Michigan v. Clifford, 464 U.S. 287, 294-95 (1984) (plurality
opinion), and the purpose of the search determines the
requisite level of particularity, cf. Groh, 540 U.S. at 557(finding the warrant invalid because it “provided no
description of the type of evidence sought”). Not all searches
have seizures in mind. For example, the law has long accepted
the use of search warrants to conduct “a routine inspection of
the physical condition of private property” in order to ensure
compliance with building codes, rather than to seize items.
See Camara v. Mun. Court of San Francisco, 387 U.S. 523,
530 (1967). It would make no sense to require a warrant to list
items to be seized when the sole purpose of the search is to
conduct an inspection, without seizing anything.
The Court followed these principles in Groh, holding the
search to seize firearms unlawful because the warrant said
nothing about them. See Groh, 540 U.S. at 563 (explaining
that the defendant could be held liable for the search because
he “did not have in his possession a warrant particularly
describing the things he intended to seize” (emphasis added)).
Here, the District officials sought only to gain entry to
Elkins’s home to see whether unlicensed construction work
was being performed. The warrant listed her address and
explained that the search was for “unlicensed construction
work which is in violation of the Construction Codes.” Defs.’
Mot. to Dismiss Ex. 10. There is no indication that the
officials envisioned seizing any documents when they sought
the warrant. Instead, as explained in more detail below, the
record shows the seizure of documents was a spur-of-the-
moment response to the instructions of an MPD officer made
during the search. See, e.g., Elkins Decl. ¶ 24; Noble Dep.
39:7-41:9, 101:15-104:16, June 10, 2008. Given this context,
the warrant’s language was sufficiently particular. An
administrative search warrant need not describe things to be
seized when none are meant to be seized. Of course, any
12
seizures made during the search that do not fall within an
exception to the warrant requirement are unconstitutional. But
such missteps do not render the entire search illegal.
IV
We agree with Elkins that the seizure of her notebook
was unlawful. The warrant requirements of the Fourth
Amendment are not mere formalities, but serve the “high
function” of shielding citizens’ private lives from all but
necessary and fully justified governmental intrusion.
McDonald v. United States, 335 U.S. 451, 455 (1948). And
their protective power is at its apex when government
officials contemplate a search within an individual’s home:
the right to be free from unreasonable governmental invasion
at home is at the Amendment’s “very core.” Silverman v.
United States, 365 U.S. 505, 511 (1961). Within this highly
protective framework, the particularity requirement serves an
especially vital role. “[H]istory shows that the police acting
on their own cannot be trusted,” McDonald, 335 U.S. at 456,
and the backdrop of the particularity requirement’s adoption,
the general search warrant, is powerful reminder of this truth.
As James Otis declared, such warrants were “the worst
instrument[s] of arbitrary power, the most destructive of
English liberty and the fundamental principles of law, that
ever [were] found in an English law book.” Boyd v. United
States, 116 U.S. 616, 625 (1886) (citation and internal
quotation marks omitted). In response, the Fourth
Amendment demands that the government articulate a
sufficient need not only for a search, but for the specific
search to be executed, describing the particular place at issue
and leaving “nothing . . . to the discretion of the officer
executing the warrant” when it comes to what may be seized,
Marron v. United States, 275 U.S. 192, 195 (1927). The
seizure of Elkins’s notebook violated this fundamental
13
guarantee. The particularity requirement “prevents the seizure
of one thing under a warrant describing another,” id., much
more the seizure of anything when the warrant describes
nothing at all. The District cannot rely on a warrant
authorizing visual inspection of a place to justify seizing
documents in that place.
What remains is to determine whether the District or any
of the individual defendants can be held liable for the seizure
under 42 U.S.C. § 1983, which provides a remedy in damages
to those deprived of “any rights, privileges, or immunities
secured by the Constitution and laws” by persons acting under
color of state law or the law of the District of Columbia. Only
those who cause a violation of a right secured by the
Constitution are liable. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). Case law has established that a municipality can
be held liable only for constitutional violations committed
by an employee who acted according to a city “policy or
custom” that was “the moving force” behind the violation.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). And
for the District officials, Elkins must produce evidence “that
each [one], through the official’s own individual actions,
has violated the Constitution.” Iqbal, 556 U.S. at 676; see also
id. (“[V]icarious liability is inapplicable to . . . § 1983
suits . . . .”); Int’l Action Ctr. v. United States, 365 F.3d 20, 28
(D.C. Cir. 2004) (“[T]here can be no respondeat superior
liability under Section 1983.”).
A. The District
Elkins’s claim against the District fails because she did
not plead in the district court the theory on which she now
attempts to hold the District liable. Elkins alleged in her
complaint that it was District policy “to invade the privacy
and security of its residents without probable cause in order to
14
defeat their due process rights in building permit disputes.”
Compl. ¶ 11. The District challenged this allegation in its
motion for summary judgment, and Elkins failed to respond.
Rather, she shifted the ground of her argument, contending
for the first time that the District should be held liable instead
for failing to train and supervise employees in conducting
searches. See Pls.’ Opp’n to Defs.’ Mot. for Summ. J. 21. The
district court construed this new argument as a motion for
leave to amend the complaint, which it denied. Coming nearly
five years after the initial complaint and after discovery had
closed, “it [was] simply much too late to amend.” Elkins II,
610 F. Supp. 2d at 59.
We review denial of leave to amend a complaint for
abuse of discretion, Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996), and find none here. Undue delay is a
valid reason to reject a party’s attempt to add a new theory of
liability to a complaint. Foman v. Davis, 371 U.S. 178, 182
(1962). On appeal, Elkins presses forward with her argument
that there was a lack of training and supervision and
completely disregards the district court’s finding that she
waited too long to advance this claim. The issue before us is
the denial of the leave to amend and not the merits of Elkins’s
new theory. Elkins makes no attempt to argue that the finding
of undue delay was made in error, and we see no reason to
think it was.
B. Maloney
The district court granted summary judgment to David
Maloney, finding that although he was a driving force in the
efforts to halt the renovations, he was not involved in the
decision to seize documents. Elkins III, 636 F. Supp. 2d at 33-
34. We agree. Elkins points to no evidence suggesting that
Maloney caused the seizure. Maloney works for HPO, which
15
was not responsible for the warrant and search; DCRA was.
Elkins claims Maloney directed Williams-Cherry to
participate in the search, but the evidence she identifies shows
only that Williams-Cherry told him that she would be
involved. That same evidence actually establishes that DCRA,
not HPO, directed her to participate in the search. Williams-
Cherry Dep. 79:2-80:16, Mar. 19, 2008. And Williams-Cherry
was clear in her testimony that Maloney had “nothing to do
with [the] search.” Id. at 80:7-8. Elkins argues that Maloney
could have seen that the warrant was inadequate on its face.
But there is no evidence that Maloney ever saw the warrant,
and even if he had, the warrant was not facially invalid. As we
have already discussed, there is nothing in the warrant even
suggesting that anything would be seized during the search.
Elkins also argues that Maloney should be held liable
because he failed to properly train and supervise Williams-
Cherry. The district court concluded that “mere allegation of a
supervisory role” was insufficient to establish liability, and in
any event the evidence could not show that his conduct was
sufficiently deficient to establish supervisory liability. Elkins
III, 636 F. Supp. 2d at 34. Supervisory liability is limited
under § 1983. The plaintiff must show that “a duty to instruct
the subordinate to prevent constitutional harm arose from the
surrounding circumstances.” Haynesworth v. Miller, 820 F.2d
1245, 1262 (D.C. Cir. 1987). Even if Maloney did have a
responsibility to train and supervise Williams-Cherry, which
he disputes, summary judgment in his favor was still
appropriate because the record shows, at best, “mere
negligence,” not an “affirmative link” between Maloney’s
conduct and the constitutional injury. Id. at 1260. This link
must be strong enough that, from Maloney’s perspective, the
possibility of a constitutional violation occurring due to poor
training or supervision would have been highly likely, not
simply foreseeable. Id. at 1261. Supervisory liability under
16
§ 1983 is triggered only when a supervisor fails to provide
more stringent training in the wake of a history of past
transgressions by the agency or provides training “so clearly
deficient that some deprivation of rights will inevitably result
absent additional instruction.” Int’l Action Ctr., 365 F.3d at 27(quoting Haynesworth, 820 F.2d at 1261-62) (internal
quotation mark omitted). There was no pattern of
constitutional violations to put Maloney on notice that
training was required; indeed, this was the first search warrant
DCRA had ever sought. And even if it was foreseeable that an
untrained official might take a false step in these new and
unfamiliar circumstances, such a result was by no means
inevitable, especially as the search was led by officers from
the MPD, who are trained in the proper execution of a
warrant.
C. Love
J. Gregory Love was the Administrator of the DCRA
Building and Land Regulation Administration until his
retirement in November 2002. The district court denied
Elkins’s motion for summary judgment against Love, finding
there were factual disputes about his connection to the seizure
of the notebook. But when Elkins agreed not to proceed to
trial, the district court dismissed her claim against Love:
Elkins had presented enough evidence to get to a jury, but not
enough for judgment in her favor as a matter of law. Elkins V,
710 F. Supp. 2d at 62. On appeal, Elkins argues that the
district court erred in denying her motion for summary
judgment against Love, relying entirely, as did the district
court, on two pieces of evidence: Love’s May 2002
instruction to Vincent Ford, DCRA’s chief building inspector,
to “find a way” to stop the work at Elkins’s home, and an
October 2002 email the District’s counsel sent to Love and
others asking about next steps for enforcement actions against
17
Elkins. See id. Neither connects Love to a decision to seize
documents or even to seek a search warrant, and there is no
other evidence to contradict Love’s testimony that he was not
involved in either of those decisions. See Haynes v. Williams,
392 F.3d 478 (D.C. Cir. 2004) (“The possibility that a jury
might speculate in the plaintiff’s favor is insufficient to defeat
summary judgment.”). Indeed, Love retired four months
before the warrant was even sought. If the court erred it was
by failing to grant summary judgment to Love. There was no
error in denying summary judgment against him and, instead,
dismissing him from the case.
D. Noble
Denzil Noble succeeded Love and was Acting
Administrator at the time of the search. The district court
granted Elkins summary judgment against Noble, relying on
three pieces of evidence. Elkins V, 710 F.2d at 64. None,
however, shows he caused the seizure of documents. The
district court first noted that Noble signed the application for
the search warrant, id., but that alone cannot implicate him in
a seizure neither sought in the application nor authorized in
the warrant. Next, the court emphasized that a draft of an
affidavit supporting the application did ask for authority to
seize documents. Id. But there is no evidence Noble ever saw
the draft, and, of course, it was only a draft. The version of
the affidavit filed in support of the warrant said nothing about
a seizure. Finally, the court relied on a single statement by
Noble in his deposition that seizing documents was a purpose
of the search. Id. But the deposition transcript shows that
Noble immediately corrected himself on this point. Noble
Dep. 62:6-64:19. He testified repeatedly throughout the
deposition that he thought the warrant would be used only to
conduct a visual inspection, not to seize documents, and that
he was “surprised” to learn later that documents had been
18
taken. Id. at 39:7-41:9, 101:15-104:16. Consistent with that
testimony, there is simply no evidence that Noble ever spoke
with anyone on the search team about the search. Id. at 41:1-
9, 105:9-11.
Elkins argues that Noble’s efforts to stop the renovations
make him somehow liable for the seizure. But the stop work
orders and the requests to inspect the construction at her home
have no bearing on whether Noble caused documents to be
improperly seized. There is no evidence that Noble said or did
anything over the course of these events that caused members
of the search team to take documents, rather than conduct a
visual search alone. Not only was Elkins not entitled to
summary judgment against Noble, but we conclude that no
reasonable juror could conclude that any act by Noble caused
the unlawful seizure. We reverse the district court’s
determination and order that summary judgment be entered in
Noble’s favor.
E. Williams-Cherry
There is no question that Williams-Cherry’s “own
individual actions,” Iqbal, 556 U.S. at 676, were instrumental
to the seizure: She took the notebook from Elkins. Williams-
Cherry argues that she is nonetheless entitled to summary
judgment on the grounds of qualified immunity. Elkins
responds that this argument is waived because Williams-
Cherry failed to raise it before the district court. Appellants’
Reply Br. 32; see also District of Columbia v. Air Fla., Inc.,
750 F.2d 1077, 1084 (D.C. Cir. 1984) (“It is well settled that
issues and legal theories not asserted at the District Court
level ordinarily will not be heard on appeal.”). But the
defendants raised a qualified immunity defense in three
separate motions, Defs.’ Mot. to Dismiss 37-40, ECF No. 7;
Defs.’ Updated Mot. for Summ. J. 30-33, ECF No. 43; Defs.’
19
Opp’n to Pls.’ Mot. for Recons. 8-9, ECF No. 105, and the
district court ruled on the issue in its first opinion in the case,
Elkins I, 527 F. Supp. 2d at 51 (“Qualified immunity does not
shield the individual Defendants from liability on Plaintiffs’
Fourth Amendment claim.”). We must therefore consider the
merits of Williams-Cherry’s defense when reviewing the
district court’s grant of summary judgment against her.
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). Under this standard,
“[t]he relevant, dispositive inquiry . . . is whether it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Saucier v. Katz, 533 U.S. 194,
202 (2001); see also id. at 206 (explaining that the doctrine
ensures “that before they are subjected to suit, officers are on
notice their conduct is unlawful”). The doctrine “gives
government officials breathing room to make reasonable but
mistaken judgments,” and “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”
Aschroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). The district
court denied Williams-Cherry qualified immunity on the
ground that it has long been clearly established that seizing
items based on a warrant that does not authorize such seizure
is unconstitutional. In doing so, the district court misapplied
the “clearly established” inquiry. That Elkins’s rights were
clearly violated does not mean Williams-Cherry clearly
should have known she was violating them. The appropriate
question for us to ask is whether it would have been clear to a
reasonable official in Williams-Cherry’s situation that seizing
Elkins’s notebook was unlawful.
20
Williams-Cherry was one of several people who carried
out the search, including MPD officers and officials from
DCRA and HPO. The MPD officers led the search along with
DCRA employee Juan Scott, one of Williams-Cherry’s
supervisors,3 who provided primary oversight of the agency
officials. Williams-Cherry was never given a copy of the
warrant. She was not shown the warrant. Scott had the
warrant in hand when he and the other agency officials
arrived first at the home. When MPD officers arrived, Scott
gave the warrant to them. According to Elkins, no one
searched for any documents until an MPD officer announced
that they had the right to do so. Elkins Decl. ¶ 24; see also
Elkins Dep. 37:14-38:18 (explaining that seizures began after
an MPD officer gave “permission”). After the search began,
Scott told Williams-Cherry, who was taking pictures of the
outside of the house, to come inside and photograph its
interior. Inside, Williams-Cherry saw officials searching
through drawers. She asked Scott if that was allowed. Scott
conferred with an MPD officer within earshot of Williams-
Cherry, and the officer said again that anything related to
construction, including documents, could be seized. When
Elkins produced the notebook Williams-Cherry, who was
standing nearby, took it from her.
We do not think it would be clear to “a reasonable
officer . . . in the situation [Williams-Cherry] confronted” that
taking the notebook from Elkins was a violation of the Fourth
Amendment. Saucier, 533 U.S. at 202. Williams-Cherry was
but a junior member of the search team present to take
pictures in an inspection led by police and her superiors.
3
Although Williams-Cherry is an HPO inspector, she was also
a contract worker for DCRA at the time of the search. Elkins I, 527
F. Supp. 2d at 41. As the search was DCRA’s operation, not
HPO’s, Scott was her supervisor for purposes of the search.
21
Before taking the notebook from Elkins, Williams-Cherry
asked her superiors about the permissible scope of the search
and relied upon the judgment of her supervisor and the police
officer in charge. We do not find any one of these factors
dispositive, but viewing them together, we conclude that
Williams-Cherry’s actions, though mistaken, were not
unreasonable. Pearson v. Callahan, 555 U.S. 223, 244 (2009)
(“The principles of qualified immunity shield an officer from
personal liability when an officer reasonably believes that his
or her conduct complies with the law.”).
Several other circuits have addressed the reasonableness
of an inferior officer’s reliance upon the conclusions of a
superior and reached similar outcomes. In the underlying
Groh case, the Ninth Circuit addressed an almost identical
situation and held that “[w]hat’s reasonable for a particular
officer depends on his role in the search.” Ramirez v. Butte-
Silver Bow Cnty., 298 F.3d 1022, 1027 (9th Cir. 2002), aff’d
sub nom., Groh v. Ramirez, 540 U.S. 551 (2004). The court
explained that although those who lead the team must read the
warrant and assure themselves of its sufficiency,
Line officers, on the other hand, are required to do much
less. They do not have to actually read or even see the
warrant; they may accept the word of their superiors that
they have a warrant and that it is valid. So long as they
make inquiry as to the nature and scope of the warrant,
their reliance on leaders’ representations about it is
reasonable. . . . Because they were not required to read
the warrant, the line officers conducting this search
cannot reasonably have been expected to know that it was
defective.
Id. at 1028 (citations, alterations, and internal quotation marks
omitted). The First Circuit has similarly held that an official
22
“may reasonably rely on a fellow officer or agent who does
(or by position should) know the substantive law and the facts
and who (based on that knowledge) asserts” that some action
is lawful. Liu v. Phillips, 234 F.3d 55, 57 (1st Cir. 2000); see
also id. at 58 (“In the few pertinent cases we could find,
officers who reasonably relied on superior officers have been
held to be entitled to qualified immunity even if the officer
who gave the direction acted on a misapprehension as to the
law.”); Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1260
(10th Cir. 1998) (“[A] police officer who acts ‘in reliance on
what proves to be the flawed conclusions of a fellow police
officer’ may nonetheless be entitled to qualified immunity as
long as the officer’s reliance was ‘objectively reasonable.’”
(quoting Rogers v. Powell, 120 F.3d 446, 455 (3d Cir.
1997))); cf. KRL v. Estate of Moore, 512 F.3d 1184, 1192-93
(9th Cir. 2008) (distinguishing Ramirez on the ground that the
line officers there, like Williams-Cherry here, did not play a
key role in the overall investigation). Whether an official’s
reliance is reasonable will always turn on several factors, but
there is no basis in this record to find that Williams-Cherry’s
was not. She is entitled to summary judgment based on
qualified immunity.
V
For the foregoing reasons, the district court’s orders are
affirmed in all respects except that the entries of summary
judgment against Noble and Williams-Cherry are vacated and
the case remanded with instructions to enter judgment in their
favor.
So ordered.