Clarissa Gilmore v. Georgia Department of Corrections

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10343

____________________

CLARISSA GILMORE,

Plaintiff-Appellant,

versus

GEORGIA DEPARTMENT OF CORRECTIONS,

an agency of the State of Georgia,

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS,

in his official capacity,

ALBERTA W. MILTON,

individually and in her official capacity,

SABRINI CARLENE LUPO,

individually and in her official capacity,

SMITH SP WARDEN,

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2 Opinion of the Court 23-10343

in his official capacity as successor-in-interest, et al.,

Defendants-Appellees,

DOUGLAS M. WILLIAMS,

individually and in his official capacity,

Defendant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 6:18-cv-00115-RSB-CLR

____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN, ROSENBAUM, JILL

PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER,

ABUDU, KIDD, and TJOFLAT, Circuit Judges.

JORDAN, Circuit Judge, delivered the opinion of the Court in which

WILLIAM PRYOR, Chief Judge, and NEWSOM, BRANCH, GRANT,

LAGOA, BRASHER, ABUDU, and TJOFLAT, Circuit Judges, joined, and

in which LUCK, Circuit Judge, joined as to Parts II.C, III.B.2, and IV.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion in which

LAGOA and TJOFLAT, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a concurring opinion in which JILL

PRYOR and KIDD, Circuit Judges, joined.

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23-10343 Opinion of the Court 3

TJOFLAT, Circuit Judge, filed a concurring opinion in which LAGOA

and BRASHER, Circuit Judges, joined, and in which LUCK, Circuit

Judge, joined as to Parts III, IV, and V.

JORDAN, Circuit Judge:

Clarissa Gilmore sued several Georgia correctional officers

under 42 U.S.C. § 1983 for subjecting her to a strip search in Febru-

ary of 2017 when she visited her then-husband at Smith State

Prison in Georgia. She alleged that the officers did not have any

suspicion to conduct a strip search, that they coerced her consent

by threatening her with detention, that they failed to give her the

option to forgo her visit and leave the facility, and that the strip

search involved physical touching of intimate body parts and a vis-

ual body-cavity inspection.

The district court granted summary judgment to the officers

on qualified immunity grounds, and a panel of this court affirmed.

The panel, viewing the evidence in the light most favorable to Ms.

Gilmore, concluded that the officers violated the Fourth Amend-

ment because they lacked reasonable suspicion for the strip search

but agreed with the district court that the officers were entitled to

qualified immunity because Supreme Court and Eleventh Circuit

precedent did not clearly establish at the time of the strip search

that reasonable suspicion was required. See Gilmore v. Ga. Dept. of

Corr., 111 F.4th 1118, 1130–36 (11th Cir. 2024).

Two members of the panel wrote separate concurrences.

Judge Rosenbaum explained that our cases, contrary to Supreme

Court precedent, failed to look to “a robust consensus of

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persuasive authority” in determining whether the law was clearly

established for qualified immunity purposes. And she suggested

that the case be reheard en banc to conform our caselaw to the Su-

preme Court’s teachings. See id. at 1136–38 (Rosenbaum, J., con-

curring). Judge Newsom generally agreed with Judge Rosen-

baum’s concern and wrote to set out some “oddities” in qualified

immunity jurisprudence. See id. at 1138–41 (Newsom, J., concur-

ring).

We voted to rehear the case as a full court, see Gilmore v. Ga.

Dept. of Corr., 119 F.4th 839 (11th Cir. 2024) (en banc), and asked the

parties to brief two issues:

1. Whether Marsh v. Butler County, 268 F.3d 1014, 1032 n.10

(11th Cir. 2001) (en banc), and Thomas ex rel. Thomas v.

Roberts, 323 F.3d 950, 955 (11th Cir. 2003), should be over-

ruled to the extent that they hold or state that no amount

of out-of-circuit authority can clearly establish the law

for purposes of qualified immunity.

2. If so, whether a “robust consensus of persuasive author-

ity” clearly established that the strip search violated Ms.

Gilmore’s Fourth Amendment rights.

After hearing oral argument, we asked the parties to brief two ad-

ditional issues:

3. Whether a jury could find that the strip search violated

the Fourth Amendment if it credits Ms. Gilmore’s ver-

sion of events.

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4. If so, whether the Fourth Amendment violation was one

of “obvious clarity” such that the officers are not entitled

to qualified immunity.

We now answer the last two questions affirmatively.

First, if it credits the version of events presented by Ms. Gil-

more, a jury could find under the totality of the circumstances that

the officers who conducted the strip search violated her Fourth

Amendment rights. The strip search was not justified at its incep-

tion because the officers (1) lacked even reasonable suspicion that

Ms. Gilmore was involved in any illegal activity, (2) coerced her con-

sent through a threat of detention, and (3) failed to give her the

option to forgo her visit and leave the facility. The search was also

unreasonable in scope because it involved the physical touching of

intimate body parts and a visual body-cavity inspection.

Second, for all of the reasons summarized above, the Fourth

Amendment violation was one of “obvious clarity.” As a result, the

officers who conducted the strip search are not entitled to qualified

immunity at this stage of the litigation.

As for the first two questions, Marsh and Thomas do not hold

that cases from our sister circuits cannot be considered in deter-

mining whether a constitutional violation was one of “obvious

clarity” for purposes of qualified immunity. To the extent that lan-

guage in Marsh, Thomas, and other Eleventh Circuit cases can be

read to suggest that out-of-circuit authority is irrelevant in deter-

mining whether the law was clearly established, we now clarify that

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such authority may indeed be considered in an “obvious clarity”

scenario.

We leave for another day the broader questions of what con-

stitutes a “robust consensus of persuasive authority” and whether

such a consensus can alone constitute clearly established law in the

absence of Supreme Court or Eleventh Circuit precedent.

I

Many of the facts here are contested. At the summary judg-

ment stage, however, we resolve any conflicts in favor of Ms. Gil-

more. We do so not only to decide whether a jury could find in her

favor on the Fourth Amendment claim, but also to determine

whether the officers who conducted the strip search are entitled to

qualified immunity. See Tolan v. Cotton, 572 U.S. 650, 657 (2014).

Viewed through this prism, here is the evidence in the light most

favorable to Ms. Gilmore, taken from the panel opinion and the

record. See Gilmore, 111 F.4th at 1124–25.

A

Twice a month, Ms. Gilmore visited her then-husband,

Mulik Sheets, at Smith State Prison in Georgia. On February 26,

2017, she arrived, as she had roughly fifty times before, and success-

fully proceeded through the initial security screening. That meant

undergoing three different types of searches: a pat-down search, a

metal-detector wand search, and an electromagnetic-radia-

tion/body-scan search.

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Smith State Prison did not have any signs warning visitors

that they might be (or would be) subject to strip searches. There

was a sign posted outside the sallyport, but it only told visitors that

by seeking to enter they “consent[ed]” to “a search of their person

and property at any time,” including “searches by the use of X-ray

devices, metal detectors, body scanners, and pat down searches.”

Once Ms. Gilmore cleared the initial security screening, cor-

rectional officers escorted her to a second building where the visit-

ation room was located. Officer Sabrini Lupo assigned Ms. Gil-

more to a table, where Mr. Sheets joined her, and their visit began.

Officer Lupo and Lieutenant Alberta Milton remained present in

the visitation room during the visit.

About thirty minutes into the visit, Ms. Gilmore noticed that

Lieutenant Milton was staring at her. Ms. Gilmore stared back for

“one to two minutes.” In apparent response, Lieutenant Milton

walked past Ms. Gilmore and returned to the front of the room,

where she spoke to other officers. Then Lieutenant Milton left the

visitation room.

When Lieutenant Milton returned with Officer Christina Iri-

zarry, she told Ms. Gilmore to go with her. Lieutenant Milton and

Officer Irizarry took Ms. Gilmore into the hallway and handed her

a strip-search approval form. That form was blank and lacked ap-

proval signatures from prison officials. Ms. Gilmore asked why the

officers were going to strip search her, but Lieutenant Milton re-

fused to tell her. Ms. Gilmore also asked Lieutenant Milton if she

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could speak to her supervisor, but Lieutenant Milton responded

that she was the officer in charge that day.

Lieutenant Milton and Officer Irizarry insisted that Ms. Gil-

more sign the strip-search approval form. If she didn’t, they said,

she would be sent to jail and would be unable to visit her husband

again. Not only that, Lieutenant Milton told Ms. Gilmore that the

officers would “search [her] anyway.” Ms. Gilmore “didn’t feel like

[she] had an option,” so she signed the form.

After Ms. Gilmore signed the form, Lieutenant Milton and

Officer Irizarry led her to an empty bathroom and instructed her

to remove all of her clothes, including her bra and underwear. Ms.

Gilmore complied. Officer Irizarry examined Ms. Gilmore’s cloth-

ing for contraband but found nothing.

When Officer Irizarry finished, at Lieutenant Milton’s direc-

tion, she conducted a manual search of Ms. Gilmore. Officer Iri-

zarry first manipulated Ms. Gilmore’s breasts, lifting each breast

and looking underneath it. Lieutenant Milton then ordered Ms.

Gilmore to “[t]urn around,” “bend over,” and “open [her] butt

cheeks.” Ms. Gilmore did as instructed, and Officer Irizarry “felt in

between” Ms. Gilmore’s buttocks with her gloved hand.

Lieutenant Milton and Officer Irizarry next instructed Ms.

Gilmore to spread her vagina, which they visually inspected. Find-

ing no contraband, they told Ms. Gilmore to put her clothes back

on and allowed her to resume her visit.

Officer Irizarry led Ms. Gilmore back to the visitation room

and told her that she was “so sorry.” Ms. Gilmore stayed until

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visitation ended, but she and Mr. Sheets barely spoke because she

was upset and “tearing up.” Ms. Gilmore left Smith State Prison

and cried through her drive home.

B

Two days later, Ms. Gilmore called Deputy Warden

Tamarshe Smith to complain and ask why she had been strip-

searched. Deputy Warden Smith seemed unaware of the incident.

He told Ms. Gilmore that he would look into it and call her back.

When Ms. Gilmore spoke to Deputy Warden Smith again, he apol-

ogized and “said that he did not see anything on the video” footage

of the visitation room “that would warrant a strip search.”

Officer Lupo testified that she smelled marijuana on Ms. Gil-

more during her visit to Smith State Prison, and that she shared her

observation with Lieutenant Milton. Officer Lupo also testified

that she found it suspicious that Ms. Gilmore was staring at her and

Lieutenant Milton. But the witness statements of Lieutenant Mil-

ton and Officer Irizarry, recorded on the day of the incident, did

not mention any marijuana odor or suspicious eye contact. Nor

did the strip-search approval form, which stated only that Ms. Gil-

more was “[u]nder suspicion for carrying contraband.”

Lieutenant Milton testified that she called Deputy Warden

Smith before conducting the strip search, and he gave her verbal

approval. But Lieutenant Milton’s contemporaneous statement

contains no reference to any such call. And duty records show that

Deputy Warden Smith was not working the day of the search. For

summary judgment purposes, then, a reasonable inference is that

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Lieutenant Milton did not obtain verbal approval from Deputy

Warden Smith for the strip search. 1

For her part, Ms. Gilmore denied consuming, possessing, or

smelling like marijuana at any point before or during her visit. She

also denied staring at Officer Lupo in the visitation room, and only

stared back at Lieutenant Milton in response to the latter’s initial

staring.

II

Our discussion relates only to the Fourth Amendment

claims against Lieutenant Milton and Officer Irizarry, who con-

ducted the strip search of Ms. Gilmore. We first address whether a

jury could find that the strip search violated the Fourth Amend-

ment. 2

A

The Fourth Amendment, as relevant here, provides that the

“right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated[.]” U.S. Const. amend. IV. It applies to the states through

1 The regulations of the Georgia Department of Corrections provide that “[n]o

strip search shall be conducted until the Strip Search Approval Form . . . is

signed by one of the following designees: . . . Warden or Deputy Warden . . .

Administrative Duty Officer or the Officer in Charge with verbal approval of

the Administrative Duty Officer.”

2 We recognize that Ms. Gilmore also asserted a Fourth Amendment claim

against Officer Lupo on a § 1983 conspiracy theory. We do not address that

claim and leave it for the panel.

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the Due Process Clause of the Fourteenth Amendment. See, e.g.,

City of Ontario v. Quon, 560 U.S. 746, 750 (2010). It is undisputed

that the non-consensual strip search of Ms. Gilmore, which in-

cluded both physical touching of intimate body parts and a visual

body-cavity inspection, was both a search and a seizure under the

Fourth Amendment. See Florence v. Bd. of Chosen Freeholders, 566

U.S. 318, 325 (2012) (upholding, as reasonable under the Fourth

Amendment, a county jail’s policy requiring that all arrestees be

strip-searched before being admitted to general population); Torres

v. Madrid, 592 U.S. 306, 317 (2021) (explaining that the “appropriate

inquiry” for determining whether there has been a Fourth Amend-

ment seizure “is whether the challenged conduct objectively mani-

fests an intent to restrain”) (emphasis in original).

As a general matter, Fourth Amendment reasonableness

takes into account the totality of the circumstances. See, e.g.,

County of Los Angeles v. Mendez, 581 U.S. 420, 427 (2017) (use of

force); Samson v. California, 547 U.S. 843, 848 (2006) (search); Florida

v. Bostick, 501 U.S. 429, 437 (1991) (seizure). The Supreme Court

has applied that same holistic approach to strip searches in the

school context, and so have we. See Safford Unified Sch. Dist. No. 1 v.

Redding, 557 U.S. 364, 375 (2009) (analyzing the strip search of a

teenage student at a middle school); T.R. by and through Brock v. La-

mar Cnty. Bd. of Ed., 25 F.4th 877, 883 (11th Cir. 2022) (same). We

therefore consider the totality of the circumstances in evaluating

the reasonableness of Ms. Gilmore’s strip search.

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“[W]hat is reasonable depends on the context within which

a search takes place.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).

In the prison context, the Supreme Court has explained that the

“test of reasonableness under the Fourth Amendment is not capa-

ble of precise definition or mechanical application. In each case it

requires a balancing of the need for the particular search against

the invasion of personal rights that the search entails. Courts must

consider the scope of the particular intrusion, the manner in which

it is conducted, the justification for initiating it, and the place in

which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 528, 559 (1979)

(upholding a detention center policy which required all pretrial de-

tainees to “expose their body cavities for inspection following con-

tact visits”).

“Determining the reasonableness of any search involves a

twofold inquiry: first, one must consider ‘whether the . . . action

was justified at its inception[;]’ second, one must determine

whether the search as actually conducted ‘was reasonably related

in scope to the circumstances which justified the interference in the

first place[.]’” T.L.O., 469 U.S. at 341 (citations omitted). We discuss

these two matters below.

B

The “amount of suspicion required to justify a particular

search depends on the intrusiveness of that search.” United States

v. Pino, 729 F.2d 1357, 1359 (11th Cir. 1984). The Supreme Court

has not addressed the level of suspicion necessary for a strip search

of a prison visitor. And prior to the panel’s decision, see Gilmore,

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111 F.4th at 1128, nor had we. But the nine circuits to have faced

the issue have all held that such a search requires reasonable suspi-

cion. See Wood v. Clemons, 89 F.3d 922, 928–29 (1st Cir. 1996); Var-

rone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997); Calloway v. Lokey, 948

F.3d 194, 202 (4th Cir. 2020); Thorne v. Jones, 765 F.2d 1270, 1276 (5th

Cir. 1985); Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir. 1991);

Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000); Hunter v. Auger,

672 F.2d 668, 674 (8th Cir. 1982); Cates v. Stroud, 976 F.3d 972, 985

(9th Cir. 2020); Romo v. Champion, 46 F.3d 1013, 1020 (10th Cir.

1995).

The strip search at issue here involved both the physical

touching of intimate body parts (the breasts and the buttocks) and

a visual body-cavity inspection. We need not definitively decide

whether this type of strip search requires reasonable suspicion or

probable cause. But for the following reasons we conclude that, at

the very least, correctional officers must have reasonable suspicion

that a visitor is concealing contraband (e.g., drugs or weapons) be-

fore they subject her to a strip search.

A visitor who seeks admission to a prison has a diminished

expectation of privacy and can expect to have her person and prop-

erty searched because contact visits can “open the institution to the

introduction of drugs, weapons, and other contraband,” Block v.

Rutherford, 468 U.S. 576, 586 (1984), but she is not in the same posi-

tion as an incarcerated detainee or inmate for purposes of the

Fourth Amendment. As the panel correctly put it, “a free person

visiting a prison is in a different position for Fourth Amendment

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purposes than a prisoner or detainee.” Gilmore, 111 F.4th at 1130.

See also T.L.O., 469 U.S. at 338 (stating that civilians and prisoners

“stand in wholly different circumstances, separated by the harsh

facts of criminal conviction and incarceration”) (quoting Ingraham

v. Wright, 430 U.S. 651, 669 (1977)); Blackburn v. Snow, 771 F.2d 556,

563 (1st Cir. 1985) (“[T]hose visiting a prison cannot credibly claim

to carry with them the full panoply of rights they normally enjoy.

But neither may they constitutionally be made to suffer a wholesale

loss of rights—nor even one commensurate with that suffered by

inmates.”).

We reject the broad contention of Lieutenant Milton and

Officer Irizarry that, for purposes of determining the Fourth

Amendment reasonableness of a strip search, a prison visitor’s sta-

tus is irrelevant. See Appellees’ Supp. Br. at 7–9. A visitor’s status

may not be determinative, but the claim that the prison setting is

the only thing that matters—regardless of the type of search that

is conducted—is a constitutional bridge too far. Such a bright-line

rule goes against the balancing that the Supreme Court has called

for in the prison context. See Bell, 441 U.S. at 559. Accord Scott v.

Harris, 550 U.S. 372, 383 (2007) (“Although respondent’s attempt to

craft an easy-to-apply legal test in the Fourth Amendment context

is admirable, in the end we must still slosh our way through the

factbound morass of ‘reasonableness.’”).

The one prison visitor/strip search case that Lieutenant Mil-

ton and Officer Irizarry cite in support of their argument, State v.

Martinez, 580 P.2d 1282 (Haw. 1978), is distinguishable on an

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important point. In Martinez the visitor had been strip-searched

before “on several previous visits” to the prison. See id. at 1284.

Based on these prior experiences, the Hawaii Supreme Court con-

cluded that the visitor’s “consent to her search [wa]s . . . established

in the present case, and the reasonableness of the search [had to]

be judged in the light of that circumstance.” Id. at 1286. Here there

is no evidence whatsoever that Ms. Gilmore had been strip-

searched on any of her approximately fifty prior visits to Smith

State Prison. Nor is there any evidence that posted signs warned

visitors that they might (or would be) subject to a strip search. Mar-

tinez simply cannot bear the jurisprudential weight that Lieutenant

Milton and Officer Irizarry seek to place on it. 3

There is “no authority for the proposition that strip searches

of prison visitors are per se reasonable.” Thorne, 765 F.2d at 1276.

In the words of a leading Fourth Amendment treatise, “a rule

3 Because, as explained later, any consent by Ms. Gilmore was coerced, we

express no view on whether Martinez was correctly decided. We note, how-

ever, that the Fifth Circuit has rejected the Martinez consent rationale in the

prison visitor/strip search context. See Thorne, 765 F.2d at 1276 (“LSP next

argues that the trial court erred in finding Mr. Thorne’s [strip] search unrea-

sonable under the [F]ourth [A]mendment, either because Mr. Thorne con-

sented to his search or because he waived his [F]ourth [A]mendment rights

when he entered the prison. LSP locates this consent or waiver in the visitor

form signed by Mr. Thorne and in the warning notices posted at the prison

gates. If accepted, this argument would render reasonable a strip search of any

such prison visitor; as discussed above, such at-will, random searches are not

reasonable under the Fourth Amendment. The argument must therefore

fail.”).

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requiring all prison visitors to submit to a body cavity strip search,

without any predicate requirement of individualized suspicion or

showing of special and highly unusual institutional need, cannot

satisfy the Fourth Amendment.” 5 Wayne R. La Fave, Search and

Seizure: A Treatise on the Fourth Amendment § 10.7(b) (6th ed. &

Nov. 2024 update) (quoting Blackburn, 771 F.2d at 562). Accord 2

Michael B. Mushlin, Rights of Prisoners § 9:21 (5th ed. & Nov. 2024

update) (“[R]outine strip searches of visitors are unconstitu-

tional.”).

This should not be surprising, for a strip search is not a rou-

tine or minimally intrusive means of maintaining prison security

with respect to visitors. As we have explained, “a strip search rep-

resents a serious intrusion upon personal rights[;]” it is “demean-

ing, dehumanizing, undignified, humiliating, terrifying, unpleas-

ant, embarrassing, [and] repulsive, signifying degradation and sub-

mission.” Justice v. Peachtree City, 961 F.2d 188, 192 (11th Cir. 1992)

(internal quotation marks and citation omitted). See also Redding,

557 U.S. at 374–75 (“embarrassing, frightening, and humiliating”).

And that intrusion is magnified when—as here—there is “physical

contact between the searcher and the person searched” and/or

there is “exposure of intimate body parts[.]” United States v. Touset,

890 F.3d 1227, 1234 (11th Cir. 2018) (internal quotation marks and

citation omitted).

We hold, therefore, that Lieutenant Milton and Officer Iri-

zarry needed at least reasonable suspicion to subject Ms. Gilmore

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to a strip search. And if they lacked reasonable suspicion, they nec-

essarily lacked probable cause, which is a higher standard.

C

Considering the totality of the circumstances, and viewing

the evidence in the light most favorable to Ms. Gilmore, the strip

search conducted by Lieutenant Milton and Officer Irizarry vio-

lated the Fourth Amendment at its inception. There was no suspi-

cion whatsoever, the consent was coerced, there was no option to

refuse consent and leave the facility, and the strip search was unrea-

sonable in scope.

No suspicion. The “concept of reasonable suspicion is

somewhat abstract,” and the Supreme Court has resisted efforts to

reduce it to a “neat set of legal rules.” United States v. Arvizu, 534

U.S. 266, 274 (2002) (internal quotation marks and citations omit-

ted). Nevertheless, reasonable suspicion is concerned with proba-

bilities, and “[t]he officer must be able to articulate more than an

inchoate and unparticularized suspicion or ‘hunch’ of criminal ac-

tivity.” Illinois v. Wardlow, 528 U.S. 119, 123–24 (2000) (internal quo-

tation marks and citation omitted).

Lieutenant Milton and Officer Irizarry did not have any sus-

picion for the strip search. Ms. Gilmore had successfully cleared an

initial security screening that consisted of a pat-down search, a

metal-detector wand search, and an electromagnetic-radia-

tion/body-scan search. She testified that she did not stare at Officer

Lupo when she was in the visitation room, that she stared back at

Lieutenant Milton only after the latter stared at her first, and that

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18 Opinion of the Court 23-10343

she did not smell of marijuana. There was no reasonable suspicion,

and certainly no probable cause, for a strip search.

Coerced consent. Lieutenant Milton and Officer Irizarry

coerced Ms. Gilmore’s consent. They told her that if she did not

sign the strip-search approval form, she would be taken into cus-

tody and would be strip-searched anyway. It has long been the law

that the “Fourth and Fourteenth Amendments require that a con-

sent not be coerced, by explicit or implicit means, by implied threat

or covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).

And “a search conducted pursuant to a coerced consent is not valid

because the consenting party is forced to allow the search.” United

States v. Rackley, 742 F.2d 1266, 1271 (11th Cir. 1984).

No option to leave. A fair inference from the record is that

Lieutenant Milton and Officer Irizarry—by telling Ms. Gilmore

that she would be detained and would be strip-searched anyway—

did not give her the option to forgo her visit, leave Smith State

Prison, and avoid the strip search. The Sixth, Seventh, and Ninth

Circuits have held that a prison visitor cannot be forced to undergo

a strip search if she wants to leave the facility, and we agree with

them. See Spear v. Sowders, 71 F.3d 626, 632 (6th Cir. 1995) (en banc)

(“While a person may consent to less invasive searches merely by

entering the facility, we do not think that a person consents to a

strip and body cavity search by simply appearing at a visiting center.

Instead, the same logic that dictates that such a search may be con-

ducted only when there is reasonable suspicion also demands that

the person to be subjected to such an invasive search be given the

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opportunity to depart.”); Burgess, 201 F.3d at 947 (agreeing with

Spear and explaining that “a general conditioning of prison visita-

tion on subjection to a strip search is manifestly unreasonable”);

Cates, 976 F.3d at 984 (“Even if there was reasonable suspicion that

Cates was seeking to bring drugs into the prison (a question we do

not reach), [the officer] violated her rights under the Fourth

Amendment by subjecting her to a strip search without giving her

the option of leaving the prison rather than being subjected to the

search.”). Accord Blackburn, 771 F.2d at 568 (conditioning access to

jail “upon sacrifice of [the] right to be free of an otherwise unrea-

sonable strip search” is “constitutionally intolerable”). 4

Unreasonable Scope. The strip search was, moreover, un-

reasonable in scope. This was not a strip search simpliciter, i.e., one

which merely consists of the person’s “clothes [being] removed.”

Search, Black’s Law Dictionary 1623 (12th ed. 2024). It was, instead,

constitutionally more intrusive in two significant ways.

The strip search involved the physical touching of intimate

body parts. Officer Irizarry lifted Ms. Gilmore’s breasts to look un-

derneath them and felt in between Ms. Gilmore’s buttocks with her

4 As noted, the sign posted outside the sallyport did not provide visitors any

warning that they could be (or would be) subject to suspicionless strip

searches. As a result, there can be no argument that Ms. Gilmore’s entry con-

stituted implied consent to a strip search. Cf. United States v. Sihler, 562 F.2d

349, 350–51 (5th Cir. 1977) (holding that a prison employee consented to a

search of his lunch bag upon entering the institution for work because a posted

sign warned that “all persons entering upon these confines are subject to rou-

tine searches of their person, property or packages”).

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20 Opinion of the Court 23-10343

gloved hand. A “[p]hysically invasive inspection is simply more in-

trusive than [a] purely visual inspection.” Bond v. United States, 529

U.S. 334, 337 (2000) (discussing the physical manipulation of a pas-

senger’s carry-on bag). And where there is physical touching like

there was here, a “greater amount of suspicion is necessary.” Pino,

729 F.2d at 1359. See also Amaechi v. West, 237 F.3d 356, 363 (4th Cir.

2001) (“Public exposure of the genitalia accompanied by physical

touching is far more intrusive than directing an arrestee to remove

her clothing in private for the purpose of ‘visually inspecting’ the

arrestee’s genitalia.”).

In addition, the strip search involved a visual body-cavity in-

spection which required Ms. Gilmore to bend over and spread her

vagina. Needless to say, this exposition of an intimate area was

more invasive and implicated even greater privacy concerns: “[V]is-

ual body cavity searches are even more intrusive [than strip

searches]. They require a [person] not only to strip naked in front

of a stranger, but also to expose the most private areas of her body

to others. This is often, as here, done while the person . . . is re-

quired to assume degrading and humiliating positions.” Sloley v.

VanBramer, 945 F.3d 30, 38 (2d Cir. 2019) (internal quotation marks

and citation omitted). See generally William E. Ringel, Searches and

Seizures, Arrests, and Confessions § 16:20 (2d ed. & March 2025 up-

date) (“When more intrusive strip searches are involved . . . the

governmental interests must be more closely scrutinized.”).

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23-10343 Opinion of the Court 21

III

The remaining question is whether Lieutenant Milton and

Officer Irizarry are entitled to qualified immunity. “Qualified im-

munity attaches when an offic[er’s] conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known. Because the focus is on whether the

officer had fair notice that her conduct was unlawful, reasonable-

ness is judged against the backdrop of the law at the time of the

conduct.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (internal quota-

tion marks and citation omitted).

“A right may be clearly established for qualified immunity

purposes in one of three ways: (1) case law with indistinguishable

facts clearly establishing the constitutional right; (2) a broad state-

ment of principle within the Constitution, statute, or case law that

clearly establishes a constitutional right; or (3) conduct so egre-

gious that a constitutional right was clearly violated, even in the

total absence of case law.” T.R., 25 F.4th at 883 (internal quotation

marks and citation omitted). Under the third method, “a general

constitutional rule . . . may apply with obvious clarity to the spe-

cific conduct in question, even though the very action in question

has not previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730,

741 (2002) (internal quotation marks and citation omitted) (deny-

ing qualified immunity to prison guards who tied a shirtless inmate

to a hitching post in the hot sun for approximately seven hours,

gave him water only once or twice, and denied him any bathroom

breaks).

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22 Opinion of the Court 23-10343

We conclude that the strip search here, considering all the

circumstances, was so clearly prohibited that a reasonable officer

would have known of its unconstitutionality in February of 2017.

The Fourth Amendment violation was, in other words, one of “ob-

vious clarity.”

A

Before returning to the record, which we view in the light

most favorable to Ms. Gilmore, we consider a recent qualified im-

munity case in which the Supreme Court found that a constitu-

tional violation was of “obvious clarity” despite the lack of cases

with similar facts.

In Taylor v. Riojas, 592 U.S. 7 (2020), a state inmate, Taylor,

asserted an Eighth Amendment claim against several correctional

officers. In his verified complaint, he alleged that he did not eat or

drink for nearly four days while he was housed in a cell that was

“covered, nearly floor to ceiling, in massive amounts of feces: all

over the floor, the ceiling, the window, the walls, and even packed

inside the water faucet.” Id. at 7–8 (internal quotation marks and

citation omitted). He also alleged that he was moved to a “frigidly

cold cell, which was equipped with only a clogged drain in the floor

to dispose of bodily wastes,” and that he “held his bladder for over

24 hours, but he eventually (and involuntarily) relieved himself,

causing the drain to overflow and raw sewage to spill across the

floor.” Id. at 8. “Because the cell lacked a bunk, and because Taylor

was confined without clothing, he was left to sleep naked in sew-

age.” Id.

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23-10343 Opinion of the Court 23

The Fifth Circuit affirmed the district court’s grant of sum-

mary judgment in favor of the officers on qualified immunity

grounds. Although it held that the conditions alleged by Taylor

violated the Eighth Amendment, the Fifth Circuit concluded that

the law was not clearly established that placing an inmate in cells

“teeming with human waste” for “only six days” was unconstitu-

tional, and as a result the officers lacked “fair warning.” See id. at 8

(quoting Taylor v. Stevens, 946 F.3d 211, 222 (5th Cir. 2019)).

In a short opinion, the Supreme Court summarily reversed

the Fifth Circuit’s qualified immunity ruling and explained, citing

to Hope, that a general constitutional rule identified in the caselaw

could apply with “obvious clarity” to conduct lacking an exact fac-

tual parallel. See id. at 8–9. Here is how the Court explained its

decision:

[N]o reasonable correctional officer could have con-

cluded that, under the extreme circumstances of this

case, it was constitutionally permissible to house Tay-

lor in such deplorably unsanitary conditions for such

an extended period of time. The Fifth Circuit identi-

fied no evidence that the conditions of Taylor’s con-

finement were compelled by necessity or exigency.

Nor does the summary-judgment record reveal any

reason to suspect that the conditions of Taylor’s con-

finement could not have been mitigated, either in de-

gree or duration. And although an officer-by-officer

analysis will be necessary on remand, the record sug-

gests that at least some officers involved in Taylor’s

ordeal were deliberately indifferent to the conditions

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24 Opinion of the Court 23-10343

of his cells. Confronted with the particularly egre-

gious facts of this case, any reasonable officer should

have realized that Taylor’s conditions of confinement

offended the Constitution.

Id. (citations omitted and paragraph structure altered).

B

Here, considering all of the circumstances described below,

the unconstitutionality of Ms. Gilmore’s strip search was of “obvi-

ous clarity.” In other words, a reasonable officer in February of

2017 would have had fair notice that the strip search violated the

Fourth Amendment at its inception and in its scope.

Before examining the relevant circumstances, we explain

that we can consider persuasive out-of-circuit authority to deter-

mine whether a violation was of “obvious clarity.”

1

The Supreme Court has said on numerous occasions that

the decisions of other circuits are a relevant consideration in deter-

mining whether the law is clearly established. “To be clearly estab-

lished, a legal principle must have a sufficiently clear foundation in

then-existing precedent. The rule must be ‘settled law,’ which

means it is dictated by ‘controlling authority’ or ‘a robust consensus

of cases of persuasive authority[.]’” District of Columbia v. Wesby, 583

U.S. 48, 63 (2018) (citations omitted and emphasis added). Accord

Plumhoff v. Rickard, 572 U.S. 765, 780 (2014); Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011); Wilson v. Layne, 526 U.S. 603, 617 (1999).

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23-10343 Opinion of the Court 25

Our decisions in Marsh and Thomas—which predate all of

the Supreme Court cases cited above except for Wilson—contain

language suggesting that out-of-circuit authority should not be

considered in determining whether a right was clearly established.

The language in Marsh, an en banc decision, was limited to the first

method of determining clearly established law, a method which is

based on prior cases that are on point. See Marsh, 268 F.3d at 1032

n.10 (“When case law is needed to ‘clearly establish’ the law appli-

cable to the pertinent circumstances, we look to decisions of the

U.S. Supreme Court, the United States Court of Appeals for the

Eleventh Circuit, and the highest court of the pertinent state.”).

The language in Thomas, however, was looser and potentially

broader:

Plaintiffs insist that “consensus or persuasive author-

ity” from other circuits may create clearly established

law. Plaintiffs then direct us to six opinions from

other circuits that deal with strip searches. As we have

stated, only Supreme Court cases, Eleventh Circuit

caselaw, and Georgia Supreme Court caselaw can

“clearly establish” law in this circuit. In Marsh . . . we

implicitly reaffirmed that position when we stated

that we do not understand [Wilson v. Layne, 526 U.S.

603 (1999)] to have held that a consensus of cases of

persuasive authority would be able to establish law

clearly.”

Thomas, 323 F.3d at 955 (citations and footnote omitted). Despite

the language they contain, Marsh and Thomas do not hold, and

should not be read to suggest, that cases from our sister circuits

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26 Opinion of the Court 23-10343

cannot be considered in determining whether a constitutional vio-

lation was one of “obvious clarity” for purposes of qualified im-

munity.

In fact, at least one of our cases points in the opposite direc-

tion. In Chandler v. Baird, 926 F.2d 1057 (11th Cir. 1991), which con-

cerned an Eighth Amendment/deliberate indifference claim in-

volving prison conditions, we relied in part on decisions issued by

our sister circuits in determining both (1) that the plaintiff had pre-

sented sufficient evidence to withstand summary judgment and (2)

that the correctional officers who had been sued were not entitled

to qualified immunity. The inmate in Baird had testified that he had

been detained in a “cold cell [with the temperature at 60 degrees]

with no clothes except undershorts and with a plastic-covered mat-

tress without bedding; [there was] filth on the cell’s floor and walls;

[he was] depriv[ed] of toilet paper for three days; [he was]

depriv[ed] of running water for two days; [there was a] lack of soap,

toothbrush, toothpaste, and linen; and . . . the cell [had previously

been occupied] by an inmate afflicted with an HIV virus.” Id. at

1063. He explained that he “slept on the floor [of his cell] and on

occasion huddled with a roommate, sleeping between two mat-

tresses.” Id.

In reversing the district court’s grant of summary judgment

in favor of the officers, we noted in part that “[o]ther circuits ha[d]

for some time recognized the temperature factor in assessing con-

ditions of confinement.” Id. at 1064. Citing and discussing cases

from the Second, Fourth, Seventh, Eighth, and Tenth Circuits, we

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23-10343 Opinion of the Court 27

held that the evidence, viewed in the light most favorable to the

plaintiff, allowed a jury to find an Eighth Amendment violation:

“We conclude from this body of caselaw that plaintiff is entitled to

have the trier of fact determine whether the conditions of his ad-

ministrative confinement, principally with regard to the cell tem-

perature and the provision of hygiene items, violated the minimal

standards required by the Eighth Amendment.” Id. at 1065. We

then held, without further explanation, that the officers were not

entitled to qualified immunity: “We also conclude, although the

district court did not reach the issue, that the right of a prisoner not

to be confined in a cell at so low a temperature as to cause severe

discomfort and in conditions lacking basic sanitation was well es-

tablished in 1986. The defendants therefore were not entitled to

summary judgment on the basis of qualified immunity.” Id. at

1065–66.

Baird supports our view that reliance on out-of-circuit au-

thorities is permitted in determining whether a violation was of

“obvious clarity.” We have explained that the Baird panel, “in ren-

dering its judgment on qualified immunity, was concerned entirely

with the law related to excessive cold claims,” Chandler v. Crosby,

379 F.3d 1278, 1296 (11th Cir. 2004), and the cases cited in Baird in-

volving cold prison cells came from other circuits.

Nevertheless, we recognize that some of our post-

Marsh/post-Thomas cases can be read to say (or suggest) that out-

of-circuit authority is not relevant under any of the three methods

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28 Opinion of the Court 23-10343

for determining whether a right was clearly established. We discuss

two such cases as examples.

In Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005),

a Fourth Amendment excessive force case, we indicated that under

each of the three methods of determining whether a right was

clearly established, out-of-circuit cases cannot be considered:

Mercado can demonstrate that his right was clearly

established in a number of ways. First, he can show

that a materially similar case has already been de-

cided, giving notice to the police. He could also show

that a broader, clearly established principle should

control the novel facts in this situation. Finally, he

could show that this case fits within the exception of

conduct which so obviously violates [the] constitu-

tion that prior case law is unnecessary. To make this

showing, Mercado must point to law as interpreted by the

Supreme Court, the Eleventh Circuit, or the Supreme Court

of Florida.

Id. at 1158–59 (citations omitted and emphasis added). On its face,

this language from Mercado could be construed to preclude consid-

eration of cases from other circuits under any of the methods for

determining clearly established law, including the “obvious clarity”

formulation. This is because the highlighted text seems to apply to

all three ways of demonstrating clearly established law.

Terrell v. Smith, 668 F.3d 1244 (11th Cir. 2012), which also in-

volved a Fourth Amendment excessive force claim, contains similar

language. In that case, we held that the officer’s use of deadly force

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23-10343 Opinion of the Court 29

was reasonable, see id. at 1252–55, but then chose to also address

the issue of qualified immunity. After setting out the three ways of

showing that a right was clearly established—including that a vio-

lation was of “obvious clarity”—we made the following general

statement: “Under controlling law, the plaintiffs must carry their

burden [as to clearly established law] by looking to the law as inter-

preted at the time by the United States Supreme Court, the Elev-

enth Circuit, or the Florida Supreme Court.” Id. at 1255. And after

analyzing the three methods—again including the “obvious clarity”

formulation—we concluded with this language: “In short, the

clearly established law as interpreted by the United States Supreme

Court, this Court, and the Florida Supreme Court would not have

given [the officer] fair notice that his actions would violate the

Fourth Amendment.” Id. at 1258. Because these two passages in

Terrell are linked to all three ways of demonstrating clearly estab-

lished law, they can be read as precluding consideration of persua-

sive out-of-circuit authority in assessing whether a violation was

one of “obvious clarity.” 5

5 Mercado and Terrell are not the only Eleventh Circuit decisions after Marsh

and Thomas to this effect. See, e.g., Crocker v. Beatty, 995 F.3d 1232, 1240 (11th

Cir. 2021) (“[O]nly decisions of the United States Supreme Court, this Court,

or the highest court in a state can ‘clearly establish’ the law.”); Loftus v. Clark-

Moore, 690 F.3d 1200, 1206 (11th Cir. 2012) (“Clark-Moore, as a Florida official

performing a discretionary duty, cannot be held to a standard of conduct

which is unsettled by the Supreme Court[,] . . . this Circuit[,] or the highest

state court in Florida.”) (internal quotation marks and citation omitted); Kelly

v. Curtis, 21 F.3d 1544, 1551 n.6 (11th Cir. 1994) (“By distinguishing those two

out-of-circuit decisions that Kelly has cited, we do not mean to imply that the

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30 Opinion of the Court 23-10343

Not surprisingly, some district courts in the Eleventh Circuit

have interpreted our precedent to bar consideration of out-of-cir-

cuit authority in determining clearly established law. And they are

not alone; a number of civil rights treatises have read our cases the

same way. See, e.g., Stafford v. City of Argo, 514 F. Supp. 3d 1353, 1363

(N.D. Ala. 2021) (“[T]he Supreme Court has stated that in the ab-

sence of controlling authority, a robust consensus of persuasive au-

thority may provide fair and clear notice particular conduct violates

the Constitution. . . . However, the Eleventh Circuit repeatedly has

instructed district courts within its bounds that only decisions is-

sued by the United States Supreme Court, the Eleventh Circuit it-

self, and the highest court of the relevant state may [be consid-

ered].”) (citations and internal quotation marks omitted); Jackson v.

McCurry, 303 F. Supp. 3d 1367, 1375 n.5 (M.D. Ga. 2017) (explaining

that, based on Eleventh Circuit precedent, “the Court does not ad-

dress the cases from other circuits and district courts that Plaintiffs

submitted to carry their burden of showing that Defendants vio-

lated clearly established law”), aff’d, 762 F. App’x 919, 925–26 (11th

Cir. 2019) (“A plaintiff may ‘demonstrate that the contours of the

right were clearly established in one of three ways.’ First, a plaintiff

may establish that ‘a materially similar case has already been de-

cided.’ Second, the plaintiff may ‘point to a broader, clearly

law can be clearly established for qualified immunity purposes by non-binding

precedent.”); Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1184 (11th Cir. 2009)

(“In this Circuit, only the caselaw of the Supreme Court, the Eleventh Circuit

or the law of the highest court of the state where the events took place—in

this case, Florida—can ‘clearly establish’ constitutional rights.”).

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23-10343 Opinion of the Court 31

established principle that should control the novel facts of the situ-

ation.’ Third, ‘the conduct involved in the case may so obviously

violate the [C]onstitution that prior case law is unnecessary.’ The

precedents that clearly establish law for these purposes are those of

the Supreme Court, this Court, and the highest court of the state

where the challenged action occurred.”) (citations omitted); 2 Ivan

E. Bodensteiner & Rosalie Berger Levinson, State and Local Gov-

ernment Civil Rights Liability § 2:8 (May 2024 update) (“The Elev-

enth Circuit . . . will not consider case law from other circuits in

deciding whether the law was clearly established.”); 2 Sheldon H.

Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Sec-

tion 1983 § 8:22 n.2 (Sept. 2024 update) (citing Eleventh Circuit

cases standing for the proposition that only decisions from the

United States Supreme Court, the Eleventh Circuit, and the su-

preme court of the state in question can clearly establish law for

purposes of qualified immunity); Michael Avery et al., Police Mis-

conduct: Law and Litigation § 3.9 n.22 (Dec. 2024 update) (citing

an Eleventh Circuit case for the same proposition).

Cases like Mercado and Terrell are not, of course, the sum and

substance of our qualified immunity law. Indeed, in some cases we

have explained that a plaintiff can make an “obvious clarity” show-

ing when there are no similar decisions from the Supreme Court,

the Eleventh Circuit, or the relevant state supreme court, thereby

indicating that the “obvious clarity” analysis is not limited to these

three buckets of caselaw. See, e.g., Dukes v. Eaton, 852 F.3d 1035, 1043

(11th Cir. 2017) (“Because no precedent of the Supreme Court, our

Circuit, or the Supreme Court of Georgia has addressed the

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32 Opinion of the Court 23-10343

constitutionality of flashbangs, Dukes must establish that ‘a gen-

eral constitutional rule already identified in the decisional law . . .

appl[ies] with obvious clarity’ to Deaton’s conduct.”) (citation

omitted).

We therefore take this opportunity to clarify an aspect of our

qualified immunity jurisprudence. Notwithstanding language in

cases like Marsh, Thomas, Mercado, and Terrell, persuasive decisions

from other circuits can be considered in determining whether a vi-

olation was one of “obvious clarity” for purposes of qualified im-

munity.6

To those who might suggest that considering the decisions

of sister circuits in an “obvious clarity” scenario is practically mean-

ingless—because it does not take published caselaw to make certain

constitutional violations “obvious”—we point out that it is not al-

ways obvious that a violation was one of “obvious clarity.” See, e.g.,

Corbitt v. Vickers, 929 F.3d 1304, 1321–23, 1324–26 (11th Cir. 2019)

(2-1 decision disagreeing about whether a Fourth Amendment vio-

lation was one of “obvious clarity”); Coffin v. Brandau, 642 F.3d 999,

1014–18, 1027, 1029–30 (11th Cir. 2011) (en banc) (8-4 decision dis-

agreeing about the same issue). In such cases persuasive authority

6 Again, we leave for another day what constitutes a “robust consensus of per-

suasive authority” and whether such a consensus can by itself create clearly

established law under the other two methods in the absence of Supreme Court

or Eleventh Circuit precedent.

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23-10343 Opinion of the Court 33

from other circuits may prove helpful in determining whether

qualified immunity applies.

2

“[T]he salient question” for us is “whether the state of the

law in [February of 2017] gave [Lieutenant Milton and Officer Iri-

zarry] fair warning that their alleged treatment of [Ms. Gilmore]

was unconstitutional.” Hope, 536 U.S. at 741. Given all of the cir-

cumstances set out below, we answer that question affirmatively:

the Fourth Amendment violation here, if Ms. Gilmore’s version of

events is credited, was one of “obvious clarity.”

First, at the time of the conduct at issue here the seven cir-

cuits that had confronted the issue (the First, Second, Fifth, Sixth,

Seventh, Eighth, and Tenth Circuits) had all held that a strip search

of a prison visitor must be supported by reasonable suspicion. See

Wood, 89 F.3d at 928–29; Varrone, 123 F.3d at 79; Thorne, 765 F.2d at

1276; Daugherty, 935 F.2d at 787; Burgess, 201 F.3d at 945; Hunter, 672

F.2d at 674; Romo, 46 F.3d at 1020. The unanimous view of a ma-

jority of the regional circuits on the minimum level of suspicion

needed for a strip search is a relevant and important consideration

in the “obvious clarity” analysis.

Lieutenant Milton and Officer Irizarry did not have reason-

able suspicion, much less probable cause, for a strip search. Ms.

Gilmore, who had successfully cleared a security screening which

involved three different types of searches, did not stare at Officer

Lupo while in the visitation room, stared back at Lieutenant Milton

only in response, and did not smell of marijuana.

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34 Opinion of the Court 23-10343

Second, Lieutenant Milton and Officer Irizarry coerced Ms.

Gilmore to consent to the strip search by threatening her with de-

tention. Again, “a search conducted pursuant to a coerced consent

is not valid because the consenting party is forced to allow the

search.” Rackley, 742 F.2d at 1271. And by telling Ms. Gilmore that

she would be strip-searched anyway, Lieutenant Milton and Officer

Irizarry did not give her the option to forgo her visit and leave.

Third, Lieutenant Milton did not obtain verbal approval for

the strip search from Deputy Warden Smith as required by the reg-

ulations of the Georgia Department of Corrections. This fact also

weighs in favor of an “obvious clarity” violation. See Hope, 536 U.S.

at 744 (considering, as a factor in the “fair notice”/qualified im-

munity analysis, the correctional officers’ failure to comply with an

Alabama Department of Corrections regulation that required a log

whenever a hitching post was used: “A course of conduct that tends

to prove that the requirement was merely a sham, or that respond-

ents could ignore it with impunity, provides equally strong support

for the conclusion that they were fully aware of the wrongful char-

acter of their conduct.”).

Fourth, the strip search was clearly (i.e., obviously) unrea-

sonable in scope. Lieutenant Milton and Officer Irizarry did not

just require Ms. Gilmore to take off her clothes. At Lieutenant Mil-

ton’s direction, Officer Irizarry lifted Ms. Gilmore breasts and felt

in between her buttocks with her gloved hand. Following this phys-

ical touching of intimate body parts, Ms. Gilmore was subjected to

a visual body-cavity search for which she had to bend over and

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23-10343 Opinion of the Court 35

spread her vagina. These more intrusive aspects implicated addi-

tional privacy concerns and required a “greater amount of suspi-

cion.” Pino, 729 F.2d at 1359. Cf. D.H. by Dawson v. Clayton Cnty. Sch.

Dist., 830 F.3d 1306, 1318 (11th Cir. 2016) (denying qualified im-

munity to an assistant principal who strip-searched a 14-year old

student in front of other school officials and some of his peers:

“Viewing all reasonable inferences in favor of D.H. [the student],

we conclude that a reasonable official in [Assistant Principal]

McDowell’s position would not have believed that requiring D.H.

to strip down to his fully naked body in front of several of his peers

was lawful in light of the clearly established principle that a student

strip search, even if justified in its inception, must be ‘reasonably

related to the objectives of the search and not excessively intrusive

in light of the age and sex of the student and the nature of the in-

fraction.’”) (quoting Redding, 557 U.S. at 386).

To recap, based on all the circumstances, the unreasonable-

ness of Ms. Gilmore’s strip search under the Fourth Amendment

(at its inception and in its scope) would have been obvious to any

reasonable correctional officer in February of 2017. There was no

suspicion whatsoever; the consent was coerced; there was no op-

tion to leave; the strip search was not administratively approved;

and the strip search involved physical touching of intimate areas

and a visual body-cavity inspection. A reasonable officer would

have had clear notice that the search was obviously unconstitu-

tional.

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36 Opinion of the Court 23-10343

IV

We reverse the district court’s grant of summary judgment

to Lieutenant Milton and Officer Irizarry on qualified immunity

grounds and remand the case to the panel for further proceedings.

REVERSED AND REMANDED.

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23-10343 WILLIAM PRYOR, C.J., Concurring 1

WILLIAM PRYOR, Chief Judge, joined by LAGOA and TJOFLAT, Cir-

cuit Judges, concurring:

Our foremost job is to decide appeals correctly. En banc re-

hearing facilitates this task by allowing us to consider each appeal

anew from every angle. Starting over may also clarify what must be

decided instead of what may be decided.

Here, our review with fresh eyes worked as intended. It

turned a difficult question—whether and how to adopt Supreme

Court dicta about a “robust consensus of cases of persuasive au-

thority”—into a simple one—whether the alleged constitutional vi-

olation is one of obvious clarity. And the majority opinion answers

that simple question correctly.

Our concurring colleague nevertheless would have us an-

swer the difficult question. See Rosenbaum Concurring Op. at 1.

She does not deny that the majority opinion decides the simple

question correctly. But in her eagerness to confront what may, but

not must, be decided, she overlooks a problem—besides those

raised by Judge Tjoflat, see Tjoflat Concurring Op. at 20–29—with

holding that a “robust consensus” of persuasive authority alone can

clearly establish the law. That is, the so-called “robust consensus”

might be wrong.

Powell v. Barrett provides an example of this problem. 541

F.3d 1298 (11th Cir. 2008) (en banc). There, we held that jail officers

may strip-search arrestees without reasonable suspicion before

placing them in a general population of detainees. Id. at 1300, 1314.

And we reached that holding despite the unanimous disagreement

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2 WILLIAM PRYOR, C.J., Concurring 23-10343

of our sister circuits. Id. at 1314–16 (Barkett, J., dissenting) (citing

nine sister circuits holding that reasonable suspicion was required

before guards could strip-search an arrestee). Later, the Supreme

Court adopted our view, not the consensus of our sister circuits. See

Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S.

318, 325–26, 330, 339 (2012). In the interim, jail officials in our Cir-

cuit were not misled that they were obliged to follow our sister cir-

cuits’ robust—and erroneous—consensus.

The lesson from Powell may apply here too, though in an

opposite way: by affording prison officers less, not more, deference.

Several circuits have held that prison officers need only reasonable

suspicion to strip-search a visitor without her consent, see Majority

Op. at 12. None have held to the contrary. Yet, I am not convinced

that reasonable suspicion, as opposed to probable cause, is the cor-

rect standard, especially when the strip-searches of visitors involve

body-cavity inspection and touching. Of course, we need not de-

cide that question today. Under any standard, the officers’ alleged

conduct violated Ms. Gilmore’s constitutional right to be free from

an unreasonable seizure. But the majority’s prudent approach—or

what our colleague describes as “skirt[ing] the reason we took the

case en banc,” see Rosenbaum Concurring Op. at 1—will permit us

to decide in a different appeal, if we must, whether probable cause,

instead of reasonable suspicion, is the proper standard. We might

then again disagree with all our sister circuits, and faced with that

split, the Supreme Court might again reject the so-called “robust

consensus.” What matters for now is that Ms. Gilmore will get her

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23-10343 WILLIAM PRYOR, C.J., Concurring 3

day in court regardless of the correct answer to the difficult ques-

tion that we avoid.

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23-10343 ROSENBAUM, J., Concurring in part 1

ROSENBAUM, Circuit Judge, joined by JILL PRYOR and KIDD, Circuit

Judges, concurring in part and in the judgment:

More than a quarter-century ago, the Supreme Court deter-

mined that a “robust consensus of cases of persuasive authority”

can clearly establish the law, making qualified immunity inappro-

priate. The Court has since repeated this principle at least three

times. So it’s unsurprising that every circuit has recognized and

accepted this principle to govern their qualified-immunity analyses.

Except us. To be sure, the Supreme Court’s determination

that a robust consensus of cases of persuasive authority can clearly

establish the law binds us, too. But somehow, we expressly rejected

that conclusion in an en banc decision twenty-four years ago. See

Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en

banc). Two years later, we doubled down on that position in

Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir. 2003).

And since then, we have continued acting like this Supreme Court

rule doesn’t apply to us.

I thought we might finally come into compliance with Su-

preme Court precedent when we voted Plaintiff-Appellant Clarissa

Gilmore’s case en banc. I was wrong. Instead, after en banc oral

argument on whether a robust consensus of cases can clearly es-

tablish the law, we directed the parties to brief two other issues that

allow us to skirt the reason we took the case en banc. And now, in

a two-step move, we once again exempt ourselves from binding

precedent. First, we cabin any “functionality” of the robust-con-

sensus-of-persuasive-authority principle to cases of obvious

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2 ROSENBAUM, J., Concurring in part 23-10343

clarity—that is, when, by definition, it’s so obvious that conduct

violates clearly established law that no precedent (controlling or

persuasive) is necessary. And second, we decide not to determine

whether a robust consensus of persuasive authority can clearly es-

tablish the law by precedent.

In my view, that’s not why we took this case en banc. And

it does next to nothing to bring our precedent into compliance with

Supreme Court precedent. It also leaves officers uncertain about

governing precedent in this Circuit.

This case presents an opportunity to correct our precedent

and clarify the law. I would use it to do both. So though I concur

in the Court’s ultimate judgment, I write separately to respectfully

explain what I think we should have done as an en banc court.

In particular, we granted en banc review to decide these

questions:

(1) Should we overrule in part Marsh v. Butler County,

268 F.3d 1014 (11th Cir. 2001) (en banc), and Thomas

ex rel. Thomas v. Roberts, 323 F.3d 950 (11th Cir. 2003),

so that a robust consensus of cases of persuasive au-

thority may clearly establish law for purposes of ab-

rogating an officer’s qualified immunity; and

(2) if so, did a robust consensus of cases of persuasive

authority clearly establish that Plaintiff-Appellant

Clarissa Gilmore’s Fourth and Fourteenth Amend-

ment rights were violated?

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23-10343 ROSENBAUM, J., Concurring in part 3

As to the first question, the answer is no doubt “yes.” We

should overrule Marsh and Thomas to the extent that they hold that

a “robust consensus of cases of persuasive authority” can’t clearly

establish the law because Supreme Court precedent says that it can.

The Tjoflat Concurrence resists this answer. But Supreme Court

precedent requires it. No need to take my word for it—as I’ve

noted, every other circuit acknowledges that fact. We should, too.

As to the second question, by 2017, at the time Defendants

strip searched Gilmore, seven circuits had held that the Fourth

Amendment requires reasonable suspicion to strip search a prison

visitor, and none had reached the opposite conclusion. Gilmore v.

Georgia Dep’t of Corr., 111 F.4th 1118, 1135 (11th Cir.) (collecting

cases), reh’g en banc granted, opinion vacated, 119 F.4th 839 (11th Cir.

2024). By any measure, that’s a robust consensus of cases of per-

suasive authority that clearly establishes this principle by prece-

dent.

And it slams the door shut on the Tjoflat Concurrence’s in-

sistence that it’s impossible to know what comprises a “robust con-

sensus.” Indeed, ten of our sister circuits have defined the term.

And under each circuit’s definition, seven unanimous cases from

the federal courts of appeals amount to a robust consensus of cases

of persuasive authority. We should also hold as much.

To be sure, the Tjoflat Concurrence offers a few reasons why

we shouldn’t adopt the “robust consensus” standard and apply it in

Gilmore’s case. And the William Pryor Concurrence piggybacks

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4 ROSENBAUM, J., Concurring in part 23-10343

on the Tjoflat Concurrence, to provide an assist. But the Concur-

rences’ reasoning doesn’t withstand scrutiny.

First, the Tjoflat Concurrence says Gilmore’s situation pre-

sents a case of obvious clarity, so it’s not necessary to overturn

Marsh and Thomas and recognize that a “robust consensus” can

clearly establish the law. But using an en banc proceeding that re-

quires us to determine whether Defendants are entitled to qualified

immunity to announce the governing legal framework for evaluat-

ing a qualified-immunity claim is hardly ground-breaking. To the

contrary, it’s appropriate. After all, it prevents future defendants

who violate clearly established rights, according to a “robust con-

sensus of cases of persuasive authority,” from escaping liability for

their unconstitutional acts.

In fact, to further precisely this interest, the Supreme Court

has authorized lower courts to address the merits of a Section 1983

claim, even when a merits determination is avoidable and unneces-

sary because the federal right was not clearly established. See

Camreta v. Greene, 563 U.S. 692, 706 (2011). When it comes to qual-

ified immunity, we’re supposed to settle the law sooner, rather than

later, so that officials don’t “persist[] in the challenged practice”

knowing that they “can avoid liability . . . because the law has still

not been clearly established.” Id.

Second, the Tjoflat Concurrence argues we shouldn’t adopt

the “robust consensus” standard here because doing so wouldn’t

have provided Defendants with notice that they would be held lia-

ble for conduct that seven other circuits (though not we) had

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23-10343 ROSENBAUM, J., Concurring in part 5

unanimously held unconstitutional before Defendants’ challenged

actions. But at the same time, the Tjoflat Concurrence declares

that the law was clearly established as to the Officers here because

it presented a case of obvious clarity. Meanwhile, the William

Pryor Concurrence looks at the “robust consensus” standard that

the Supreme Court has repeatedly invoked and exactly every other

Circuit has adopted, and somehow it concludes that whether to

adopt that standard presents a “difficult question” that we should

avoid answering.

My colleagues can’t have it both ways. If this is a case of

obvious clarity, it offers the perfect opportunity to announce the

correct legal framework for determining whether a right is clearly

established going forward. Defendants had fair notice because of

the obvious clarity. And at the same time, no future plaintiff with

a plausible claim would have to endure officers’ violations of their

rights with impunity because we hadn’t yet adopted the “robust

consensus” standard.

Finally, the Tjoflat and William Pryor Concurrences argue

I’ve “overlook[ed]” the fact that the “robust consensus” rule of the

other circuits might be wrong. Pryor Conc. Op. at 1; see also Tjoflat

Conc. Op. at 24–25, 27–28. And the Pryor Concurrence supposes

that the “robust consensus” rule here might be wrong because it

seems to have coalesced around a reasonable-suspicion standard,

not a probable-cause one. See Pryor Conc. Op. at 2. Then the Pryor

Concurrence seems to suggest that if we adopted the “robust con-

sensus” standard, plaintiffs (including Gilmore) and would-be

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6 ROSENBAUM, J., Concurring in part 23-10343

plaintiffs would fare worse in cases when we adopt a stricter rule

than our sister circuits do.

Not so. Under the “robust consensus” standard, if we think

the “robust consensus” rule that officers need only reasonable sus-

picion to perform the intrusive search here is wrong, then we can

reach a different conclusion. We can instead hold that probable

cause is necessary.

And if we adopted the “robust consensus” standard but did

not adopt a “robust consensus” rule (here, that an officer must have

reasonable suspicion (instead of probable cause) to conduct an in-

vasive search of a prison visitor), the officers’ pre-suit conduct and

the plaintiff’s ability to recover in the case of first impression would

be the very same as if we didn’t adopt the “robust consensus”

standard.

In both situations (if we adopted the “robust consensus”

standard and if we didn’t), if officers had reasonable suspicion, but

lacked probable cause, then they’d be entitled to qualified immun-

ity because no decisions, not even those of our sister circuits, would

have yet informed the officers that their conduct was unconstitu-

tional. And in both situations, the unanimity of our sister circuits

in adopting a rule that we ultimately didn’t, would show that the

officer was reasonable in acting as he did. So rejecting our sister

circuits’ rule would have precisely no effect on parties in the case

before us if we adopted a stricter rule than our sister circuits. Nor

would it affect any conceivable future case. But adopting the “ro-

bust consensus” standard would protect people’s rights and

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23-10343 ROSENBAUM, J., Concurring in part 7

authorize liability against officers who violate the “robust consen-

sus” rule when we adopt the same rule as the other circuits. Again,

it’s for this very reason the Supreme Court has allowed lower

courts to settle constitutional issues that “may be decided” before

they technically “must be decided,” id. at 1, so officers don’t violate

the Constitution merely because we have not yet clearly established

the law, see Greene, 563 U.S. at 706.

I break my discussion into three parts. Part I summarizes

why the Court’s holding today does not accomplish much. Part II

explains why we should hold that a “robust consensus of cases of

persuasive authority” can clearly establish the law by precedent.

And Part III shows that a “robust consensus of cases of persuasive

authority” clearly establishes by precedent that the Fourth Amend-

ment requires reasonable suspicion to strip search a prison visitor.

I. The Court’s holding today makes no effective differ-

ence in our qualified-immunity jurisprudence.

Qualified immunity attempts to balance “the need to hold

public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Cal-

lahan, 555 U.S. 223, 231 (2009). To accomplish these dual goals, the

doctrine protects government officials engaged in discretionary

functions and sued in their individual capacities unless they violate

“clearly established federal statutory or constitutional rights of

which a reasonable person would have known.” Keating v. City of

Miami, 598 F.3d 753, 762 (11th Cir. 2010). The “clearly established”

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8 ROSENBAUM, J., Concurring in part 23-10343

requirement shields from liability “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) (citation omitted).

Three limitations on the legal authorities that plaintiffs may

use to advance their claims ensure that the governing law is, in fact,

“clearly established” before a plaintiff may overcome a qualified-

immunity defense. See Gervin v. Florence, 139 F.4th 1236, 1260–61

(11th Cir. 2025).

First, we limit the substance of the law a plaintiff may use.

She “must point to (1) ‘case law with indistinguishable facts,’ (2) ‘a

broad statement of principle within the Constitution, statute, or

case law,’ or (3) ‘conduct so egregious that a constitutional right

was clearly violated, even in the total absence of case law.’” Crocker

v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021) (quoting Lewis v. City

of West Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009)). We

sometimes refer to the third category as one of “obvious clarity”—

that is, “the conduct at issue so obviously violated the Constitution

that prior case law is unnecessary.” JW ex rel. Williams v. Birmingham

Bd. of Educ., 904 F.3d 1248, 1260 (11th Cir. 2018).

Second, we limit the timing of the relevant case law: plain-

tiffs may rely on only the case law issued at the time of the official’s

act, not on law that developed later. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). “If objective observers cannot predict—at the time

the official acts—whether the act was lawful or not, . . . the official

deserves immunity from liability for civil damages.” Foy v. Holston,

94 F.3d 1528, 1534 (11th Cir. 1996).

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23-10343 ROSENBAUM, J., Concurring in part 9

And third, we limit the jurisdictions from which a plaintiff

may identify applicable law: the plaintiff must point “to binding de-

cisions of the Supreme Court of the United States, this Court, [or]

the highest court of the relevant state.” Glasscox v. City of Argo, 903

F.3d 1207, 1217 (11th Cir. 2018). Other jurisdictions’ precedent can-

not clearly establish the law in our Circuit. See Marsh, 268 F.3d at

1032 n.10; Thomas, 323 F.3d at 955.

To be sure, the Court today holds that we may consider a

“robust consensus of cases of persuasive authority” to determine

whether the challenged conduct falls within the substantive obvi-

ous-clarity category. But most respectfully, it’s hard to see why a

“robust consensus of cases of persuasive authority” would ever be

necessary in determining whether “the conduct at issue so obvi-

ously violated the Constitution that prior case law is unnecessary.”

JW, 904 F.3d at 1260 (emphasis added). And so, to me, our holding

today feels performative, not substantive.

II. We should overrule in part Marsh and Thomas so that

“a robust consensus of cases of persuasive authority”

may clearly establish law for purposes of abrogating

an officer’s qualified immunity.

This Part reviews the Supreme Court’s precedent on “a ro-

bust consensus of cases of persuasive authority,” shows how our

precedent fails to follow that line of cases, and explains that we are

a true outlier among the circuits.

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10 ROSENBAUM, J., Concurring in part 23-10343

I begin with Wilson v. Layne, 526 U.S. 603 (1999). That is the

first case when the Court said that a “consensus of cases of persua-

sive authority” can clearly establish the law.

There, the Court considered whether police officers violated

the Fourth Amendment when, in executing an arrest warrant in a

private home, they invited representatives of the media to accom-

pany them. Id. at 605. Although the Court concluded that the me-

dia ride-along violated the Fourth Amendment, it held that the de-

fendant officers were entitled to qualified immunity. Id. at 606. At

the time of the media ride-along—which had occurred in the

Fourth Circuit—only the Sixth Circuit had addressed a materially

similar question. Id. at 616 (citing Bills v. Aseltine, 958 F.2d 697 (6th

Cir. 1992)). The Sixth Circuit had reached essentially the same con-

clusion in Bills as did the Court in Wilson. That is, the Sixth Circuit

had held that material issues of fact precluded summary judgment

on whether the police exceeded the scope of a search warrant by

allowing a private security guard to participate in the search to

identify stolen property other than that described in the warrant.

Id. at 616–17.

But the Court held that the single case from the Sixth Circuit

could not clearly establish the constitutional violation at issue in

Wilson in the Fourth Circuit. As the Supreme Court explained, the

Sixth Circuit’s opinion was not “controlling authority in [the

Fourth Circuit’s] jurisdiction.” Id. at 617. And although the case

was of persuasive value, a lone case is not “a consensus of cases of

persuasive authority such that a reasonable officer could not have

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23-10343 ROSENBAUM, J., Concurring in part 11

believed that his actions were lawful.” Id. Because the law was

“undeveloped,” the officers could not “have been ‘expected to pre-

dict the future course of constitutional law.’” Id. at 618 (quoting

Procunier v. Navarette, 434 U.S. 555, 562 (1978)). So the Court held

that the lower courts appropriately found qualified immunity.

Since then, the Supreme Court has reaffirmed and further

refined the “consensus of cases of persuasive authority” principle.

In Aschroft v. al-Kidd, the Court considered “whether a for-

mer Attorney General enjoys immunity from suit for allegedly au-

thorizing federal prosecutors to obtain valid material-witness war-

rants for detention of terrorism suspects whom they would other-

wise lack probable cause to arrest.” 563 U.S. 731, 733 (2011). The

Court concluded he did. As it explained, “not a single judicial opin-

ion had held that pretext could render an objectively reasonable ar-

rest pursuant to a material-witness warrant unconstitutional.” Id.

at 741.

Although a district-court decision supported the plaintiff’s

position, the Court rejected that case as sufficient to clearly estab-

lish law. As Justice Scalia put it, “a district judge’s ipse dixit of a

holding is not ‘controlling authority’ in any jurisdiction, much less

in the entire United States; and his ipse dixit of a footnoted dictum

falls far short of what is necessary absent controlling authority: a robust

‘consensus of cases of persuasive authority.’” al-Kidd, 563 U.S. at 741–

42 (emphasis added) (quoting Wilson, 526 U.S. at 617).

Up next, we have Plumhoff v. Rickard. There, the Court ex-

plained that to “defeat immunity” the plaintiff had to show “at a

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12 ROSENBAUM, J., Concurring in part 23-10343

minimum” that “either controlling authority or a robust consensus of

cases of persuasive authority” established the asserted constitutional

violation. 572 U.S. 765, 780 (2014) (cleaned up) (emphasis added).

To be sure, in two 2015 cases, the Court appeared to qualify

its prior decisions. In City and County of San Francisco v. Sheehan, for

instance, the Court quipped that “to the extent that robust consen-

sus of cases of persuasive authority could itself clearly establish the

federal right respondent alleges, no such consensus exists here.”

575 U.S. 600, 617 (2015) (cleaned up). And it repeated its “to the

extent” qualification in Taylor v. Barkes. 575 U.S. 822, 826 (2015) (per

curiam) (quoting Sheehan, 575 U.S. at 826).

But the Court has since unqualifiedly confirmed that, by it-

self, a “robust consensus of cases of persuasive authority” can

clearly establish the law. In District of Columbia v. Wesby, Justice

Thomas, writing for the Court, explained that, to abrogate quali-

fied immunity, the relevant legal rule “must be settled law, which

means it is dictated by controlling authority or a robust consensus of

cases of persuasive authority.” 583 U.S. 48, 63 (2018) (cleaned up)

(emphasis added). And in criticizing the reasoning that led the

lower court to abrogate qualified immunity, the Court said that

“neither the panel majority nor the [plaintiffs] have identified a sin-

gle precedent—much less a controlling case or robust consensus of

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23-10343 ROSENBAUM, J., Concurring in part 13

cases—finding a Fourth Amendment violation under similar cir-

cumstances.” Id. at 65 (cleaned up) (alteration added). 1

1 The Tjoflat Concurrence invokes Wesby’s eighth footnote to argue that the

Supreme Court has not ruled that a “robust consensus of cases of persuasive

authority” can clearly establish the law. See Tjoflat Conc. Op. at 15–17. That’s

a swing and a miss. In fact, Wesby’s footnote eight neither draws nor supports

any conclusion of the kind. Wesby’s footnote eight says, “We have not yet

decided what precedents—other than our own—qualify as controlling authority

for purposes of qualified immunity.” 583 U.S. at 66 n.8 (emphasis added). And

that footnote’s reliance on Reichle v Howards, 566 U.S. 658, 665–66 (2012), illus-

trates that same thing: the Supreme Court hasn’t yet defined the meaning of

“controlling authority” in the qualified-immunity context. But the Supreme

Court’s recognition that it hasn’t said what qualifies as “controlling authority”

doesn’t renounce the Court’s earlier holdings that “controlling authority”

(whatever may so qualify) and “persuasive authority” can both clearly estab-

lish the law. Indeed, nothing in the footnote the Tjoflat Concurrence points

to undermines the Court’s previous holding that “decisions in various Cir-

cuits” can provide a “warning [that] is fair enough” for officers to be held lia-

ble. United States v. Lanier, 520 U.S. 259, 269 (1997). Just the opposite. Wesby

repeats that a “robust consensus of cases of persuasive authority” can clearly

establish (or “settle[]”) the law. Wesby, 583 U.S. at 63 (internal quotation marks

omitted). And if Wesby left open the possibility that decisions of the courts of

appeals are not controlling authority, then a “robust consensus of cases of per-

suasive authority” can abrogate qualified immunity all the more. Otherwise,

only Supreme Court precedent could clearly establish the law—and no deci-

sion in the qualified-immunity context has accepted (or even suggested) that

rule. See Lanier, 520 U.S. at 269 (explaining “that in applying the rule of quali-

fied immunity,” the Court has “referred to decisions of the Courts of Appeals

when enquiring whether a right was ‘clearly established’”).

Attempting to thread Wesby’s footnote through Lanier’s holding, the Tjoflat

Concurrence posits that the Supreme Court’s understanding of “controlling

authority” and “persuasive authority” may differ from ours. Tjoflat Conc. Op.

at 16–17. From that, it conjects that the Supreme Court could have defined

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14 ROSENBAUM, J., Concurring in part 23-10343

In short, over the last several years, the Supreme Court has

established and repeatedly confirmed that a “robust consensus of

cases of persuasive authority” can clearly establish the law.

The State of Georgia resists this fact. It characterizes the

Supreme Court’s repeated statements of the “robust consensus of

cases of persuasive authority” as “unexplained dicta.” The Tjoflat

Concurrence chimes in, too, asserting that the Supreme Court “has

never held that persuasive precedent can clearly establish the law.”

Tjoflat Conc. Op. at 18.

He and the State misunderstand. Of course, we are not

bound by every thought or musing in the United States Reports.

Only the Supreme Court’s “holdings” bind us. 2 Andrew v. White,

“persuasive authority” to mean only binding precedent from the immediate

appellate court, not out-of-circuit authority. Id. But that musing runs head-

long into Wilson, which considered the Sixth Circuit case the plaintiff proffered

to be persuasive authority, even though it was not a Fourth Circuit case. See

526 U.S. at 616–17 (explaining the proffered Sixth Circuit authority was neither

“controlling authority [in the plaintiffs’] jurisdiction” nor part of “a consensus

of cases of persuasive authority” (emphasis added)). Plus, even if we assumed

in-circuit precedent could never qualify as “controlling authority”—a position

contrary to every circuit’s current application of Supreme Court precedent—

the notion that a “robust consensus of cases” of in-circuit precedent would be

necessary to clearly establish the law within a single circuit is nonsensical,

given the prior-panel-precedent rule, which binds every panel to a prior

panel’s holding unless and until that the Supreme Court or our en banc Court

abrogates it. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

2 Still, we have emphasized the importance of Supreme Court dicta. See, e.g.,

Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (“[T]here is dicta and

then there is dicta, and then there is Supreme Court dicta. . . . We have

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23-10343 ROSENBAUM, J., Concurring in part 15

145 S. Ct. 75, 82 (2025); Royal Canin U.S.A., Inc. v. Wullschleger, 604

U.S. 22, 39 (2025).

But the Court has unambiguously told us that when it uses

“a legal rule or principle to decide a case, that principle is a ‘holding’

of the Court.” Andrew, 145 S. Ct. at 81. 3 That’s so, even if the legal

principle it announces isn’t “strictly necessary to a court’s judg-

ment,” like when we choose between “two competing legal ‘tests.’”

United States v. Files, 63 F.4th 920, 927–28 (11th Cir.), cert. denied, 144

S. Ct. 419 (2023). We consider that choice binding “even when it’s

not clear that the case would have turned out differently under the

other” test. Id. at 928.

After all, “no one thinks that when we do state a governing

rule—as we typically do—we do so gratuitously and unneces-

sarily.” Id. at 928 & n.5 (citing Michael Abramowicz & Maxwell

Stearns, Defining Dicta, 57 STAN. L. REV. 953, 984–86 (2005)). In

previously recognized that ‘dicta from the Supreme Court is not something to

be lightly cast aside.’” (citations omitted)).

3 The Tjoflat Concurrence argues that the Supreme Court limited Andrew’s

rule about what constitutes a holding to the AEDPA context. Tjoflat Conc.

Op. at 18 n.1. But its argument conflicts with our own precedent, which ap-

plies Andrew’s understanding of a holding to all contexts. See Files, 63 F.4th at

928 (confirming “statements of a legal rule” are holdings). Plus, even if we

weren’t bound by our precedent, Andrew itself cited qualified-immunity cases

to explain why the appellate court erred in refusing to apply the applicable

legal principle, confirming that its holding-dicta distinction applies with equal

force here. See Andrew, 145 S. Ct. at 82 (citing Taylor v. Riojas, 592 U.S. 7, 8

(2020), and Hope v. Pelzer, 536 U.S. 730 (2002), in a discussion about when gen-

eral legal principles may clearly establish the asserted violation).

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16 ROSENBAUM, J., Concurring in part 23-10343

other words, declaring the minimum threshold that a plaintiff must

meet to prevail on a claim does not somehow turn the Court into

a “roving commission” attempting to “publicly opine on every legal

question.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). Ra-

ther, it establishes a governing principle to resolve the “question

actually before the Court.” Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 399 (1821) (Marshall, C.J.).

The “robust consensus” standard is exactly that: a legal rule

that the Supreme Court has announced in setting the minimum

threshold for a plaintiff to succeed in a Section 1983 claim. Indeed,

the Court keeps invoking it in resolving Section 1983 cases precisely

because it is a governing principle. Plaintiffs may rely on a “robust

consensus of cases of persuasive authority” to “defeat immunity,”

Plumhoff, 572 U.S. at 780, because it is “what is necessary absent”

other case law that is sufficient to defeat immunity—“controlling

authority,” al-Kidd, 563 U.S. at 741–42.

As every other circuits’ adoption of the “robust consensus”

standard shows, the Tjoflat Concurrence’s attempt to avoid the

binding nature of the Supreme Court’s announcement of the “ro-

bust consensus” standard is unpersuasive. See Tjoflat Conc. Op. at

9–20.

Under the Tjoflat Concurrence’s logic, a legal rule can be-

come a holding only when a plaintiff prevails under it. The Tjoflat

Concurrence would conclude that judgments for defendants can’t

establish legal principles because a court could always alter the

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23-10343 ROSENBAUM, J., Concurring in part 17

relevant threshold in a future case. But that’s not how precedent

works.

An example proves the point. No court or litigant would say

Strickland v. Washington did not announce the legal rule governing

ineffective-assistance-of-counsel claims, even though, in that case,

Strickland failed “to make the required showing of either deficient

performance or sufficient prejudice.” 466 U.S. 668, 700 (1984). In

fact, both the Supreme Court and we have described Strickland’s

standard as a holding and as binding precedent. See, e.g., Woodford

v. Visciotti, 537 U.S. 19, 22 (2002) (describing Strickland’s holding);

Calhoun v. Warden, Baldwin State Prison, 92 F.4th 1338, 1347 (11th

Cir.) (same), cert. denied, 145 S. Ct. 443 (2024).

The Supreme Court’s articulation of the “robust consensus”

standard in Wilson is a holding in the same way Strickland’s test is.

Wilson held that a single out-of-circuit case can’t clearly establish

the law. 526 U.S. at 617. Had one, persuasive, and on-point case

been sufficient, the Wilson plaintiff could have succeeded. So by

clarifying the evidentiary bar that a plaintiff must meet to succeed

on Section 1983 claims—that is, at a minimum, “a consensus of

cases of persuasive authority,” id.—the Court issued a holding that

binds us. That’s so despite the Court’s additional rationale that a

split of authority among circuits had developed during the litiga-

tion of the case. After all, “our precedent treats alternative hold-

ings ‘as binding as solitary holdings.’” Files, 63 F.4th at 927 (quoting

Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008)).

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18 ROSENBAUM, J., Concurring in part 23-10343

The Tjoflat Concurrence can’t escape the Supreme Court’s

repeated recognition of the “robust consensus” standard by trying

to reimagine what the Supreme Court has said. The Tjoflat Con-

currence claims, for instance, that in al-Kidd, the Supreme Court

used the phase about a “robust consensus of cases of persuasive

authority” merely “descriptively—to underscore how far the plain-

tiff’s argument fell short.” Tjoflat Conc. Op. at 13.

The Supreme Court did no such thing. Here’s what the

Court said: “Even a district judge’s ipse dixit of a holding is not ‘con-

trolling authority in any jurisdiction, much less in the entire United

States; and his ipse dixit of a footnoted dictum falls far short of what

is necessary absent controlling authority: a robust ‘consensus of cases of

persuasive authority.’” al-Kidd, 563 U.S. at 74142 (emphasis added)

(quoting Wilson, 526 U.S. at 617). There is simply no accurate way

to read these statements—whether in isolation or in the context of

the rest of the opinion—to mean anything other than that a plain-

tiff can precedentially show the law is clearly established in either

of two ways: with “controlling authority” or with “a robust con-

sensus of cases of persuasive authority.” A “robust consensus of

cases of persuasive authority” is no more “descriptive” than is “con-

trolling authority.” They’re both governing legal standards. And

no amount of reimagining or naysaying changes that.

So Judge Tjoflat’s conjecture that the Supreme Court an-

nounced the “robust consensus” standard as something that

“might” equate to settled law, Tjoflat Conc. Op. at 16, finds support

only in Sheehan’s and Barkes’s qualifiers. But Wesby dropped that

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23-10343 ROSENBAUM, J., Concurring in part 19

qualifier, and Sheehan and Barkes cannot bear their weight when we

look at the Court’s qualified-immunity precedents in full view. In-

deed, the Court long ago explained that the “disparate decisions in

various Circuits” can offer a “warning” to officials that “is fair

enough” to impose liability. United States v. Lanier, 520 U.S. 259, 269

(1997) (rejecting the Sixth Circuit’s rule that only Supreme Court

decisions can provide fair notice to officials of constitutional viola-

tions).

That’s why every single one of our eleven geographically

based sister circuits—the First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, Tenth, and District of Columbia Circuits—

uniformly abides by the principle that a “robust consensus of cases

of persuasive authority” can clearly establish the law in qualified-

immunity cases.4 See, e.g., Irish v. Fowler, 979 F.3d 65, 76 (1st Cir.

2020); Sloley v. VanBramer, 945 F.3d 30, 40 (2d Cir. 2019); James v. N.J.

State Police, 957 F.3d 165, 170 (3d Cir. 2020); Johnson v. Robinette, 105

F.4th 99, 120–21 (4th Cir. 2024); Lincoln v. Scott, 887 F.3d 190, 197

(5th Cir. 2018); Akima v. Peca, 85 F.4th 416, 423 (6th Cir. 2023); Est.

of Davis v. Ortiz, 987 F.3d 635, 638 (7th Cir. 2021); De La Rosa v.

White, 852 F.3d 740, 745–46 (8th Cir. 2017); Hopson v. Alexander, 71

4 The Federal Circuit addressed a separate issue where it employed a clearly-

established-law framework. It acknowledged in a string citation that “clearly

established law in the qualified immunity context” includes “cases from the

Supreme Court and the U.S. Court of Appeals” for the relevant circuit, as well

as “cases from other courts exhibiting a consensus view.” U.S. Capitol Police v.

Off. of Compliance, 916 F.3d 1023, 1027 (Fed. Cir. 2019) (cleaned up) (quoting

Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011)).

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20 ROSENBAUM, J., Concurring in part 23-10343

F.4th 692, 697, 707 (9th Cir. 2023); Lewis v. City of Edmond, 48 F.4th

1193, 1198 (10th Cir. 2022), cert. denied, 143 S. Ct. 1055 (2023);

Vasquez v. District of Columbia, 110 F.4th 282, 288 (D.C. Cir. 2024).

Only we do not. In Marsh, we expressly rejected Wilson’s

standard, saying only that we did “not understand Wilson . . . to

have held that a ‘consensus of cases of persuasive authority’ from

other courts would be able to establish the law clearly.” Marsh, 268

F.3d at 1032 n.10 (quoting Wilson, 526 U.S. at 617). Marsh offered

the rationale that, because “splits between jurisdictions on matters

of law are not uncommon,” officials should not have “to sort out

the law of every jurisdiction in the country.” Id.

But for three reasons, that can’t excuse our failure to abide

by Supreme Court precedent.

First, it’s simply not accurate to describe the Court’s Wil-

son/al-Kidd/Plumhoff/Wesby “robust consensus of cases of persua-

sive authority” standard as requiring officials “to sort out the law

of every jurisdiction in the country.” As I explain more in the next

section, a “robust consensus” means there’s strong agreement, and

the Supreme Court has already told us that district-court decisions

can’t clearly establish the law. See al-Kidd, 563 U.S. at 741–42;

Camreta, 563 U.S. at 709 n.7 (“[D]istrict court decisions—unlike

those from the courts of appeals—do not necessarily settle consti-

tutional standards or prevent repeated claims of qualified immun-

ity.”).

Second, complying with the “robust consensus” standard

hasn’t been a problem for law enforcement in any of our eleven

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23-10343 ROSENBAUM, J., Concurring in part 21

sister circuits. And it’s not clear to me why the Eleventh Circuit

will experience some unique trouble in applying that same princi-

ple. In fact, the Supreme Court rejected these workability concerns

decades ago. As the Court has explained, although “disparate de-

cisions in various Circuits might leave the law insufficiently certain

even on a point widely considered,” it is just a “circumstance” to

“be taken into account in deciding whether” the law provides a

“warning” to officers that “is fair enough.” Lanier, 520 U.S. at 269.

Plus, even our Circuit’s formulation—that only decisions

from the Supreme Court, the Eleventh Circuit, or the highest court

of the state can clearly establish the law—has always functioned

under a legal fiction. No one really thinks that officers have the

time to read, understand the significance of, and be up to date on

all governing case law, while still performing their law-enforcement

functions. But we indulge the legal fiction that precedent gives of-

ficers notice, anyway. We do so because we know that law-enforce-

ment departments have legal counsel whose job it is to stay on top

of constitutional-law developments that affect officers’ responsibil-

ities and to educate those officers about the law. And when a “ro-

bust consensus of cases of persuasive authority” coalesces on an

issue—no matter whether the cases are inside or outside a law-en-

forcement department’s jurisdiction—you can be sure that counsel

tracks that. After all, that’s counsel’s job. Indeed, conferences and

seminars are regularly held on national developments in the law.

And third, we’re talking about binding Supreme Court prec-

edent. Compliance isn’t optional and we shouldn’t treat it that way.

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22 ROSENBAUM, J., Concurring in part 23-10343

So Marsh and its reasoning fail. Thomas is no better. It just

doubled down on Marsh’s errors by invoking our prior-panel prec-

edent rule: Thomas stated simply that Marsh “implicitly reaffirmed”

our pre-Wilson position so that any “argument based upon deci-

sions in other circuits [was] foreclosed by our precedent.” 323 F.3d

at 955 (citing 268 F.3d at 1032 n.10). Marsh and Thomas offer no

reason to avoid adopting binding Supreme Court precedent. And I

would abrogate them and hold, as Supreme Court precedent re-

quires, that a “robust consensus of cases of persuasive authority”

can clearly establish the law.

III. A “robust consensus of cases of persuasive authority”

clearly established that Plaintiff-Appellant Clarissa

Gilmore’s Fourth and Fourteenth Amendment rights

were violated.

So what does a “robust consensus of cases of persuasive au-

thority” mean? This Part first defines the standard through the Su-

preme Court’s guidance, the practice of our sister circuits, and the

principle of fair notice that guides every qualified-immunity in-

quiry. Then this Part applies the “robust consensus” standard to

Gilmore’s claims. Gilmore’s claim meets any reasonable definition

of a robust consensus of cases of persuasive authority, so Defend-

ants do not enjoy qualified immunity.

A. If several unanimous decisions from federal appellate courts

agree on a legal rule, they make up a “robust consensus of cases

of persuasive authority.”

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23-10343 ROSENBAUM, J., Concurring in part 23

Luckily, we don’t need to write on a blank slate when we

determine the meaning of a “robust consensus of cases of persua-

sive authority.” Contrary to the Tjoflat Concurrence’s suggestion,

this isn’t an area of law where “nobody knows” how to apply the

controlling principle. Tjoflat Conc. Op. at 20. 5 We’re not

5 The Tjoflat Concurrence suggests that because no uniform rule about what

constitutes a “robust consensus” exists, the standard undermines qualified im-

munity’s core purpose of fair notice. Tjoflat Conc. Op. at 21–22. That logic

misunderstands the difference between persuasive and controlling authority.

Yes, any definition of a “robust consensus of cases of persuasive authority”

would necessarily refer to the concept of persuasive authority. But if we used

this opportunity to define what a “robust consensus” is in the Eleventh Circuit,

then we would create controlling precedent on that definition. And officers

would have fair notice of when a constitutional violation is clearly established

under that standard in this Circuit. It makes no difference that we may define

the “robust consensus” standard differently than other circuits do because our

definition would control in this Circuit under our prior-panel-precedent rule.

See GTE Corp., 236 F.3d at 1300 n.8. After all, circuits occasionally split on sub-

stantive law in Section 1983 cases. But no one would suggest a circuit split

deprives officers in one circuit of fair notice if their circuit has already held that

certain conduct violates clearly established rights: the officers know to which

side of the split their circuit adheres. See, e.g., Laskar v. Hurd, 972 F.3d 1278,

1294, 1298 (11th Cir. 2020) (acknowledging “that our conclusion departs from

the consensus of our sister circuits” but confirming the plaintiff alleged that

the defendants “violated clearly established law” under our precedent). The

same is true of the meaning of “robust consensus.” Controlling precedent

governs in both situations. Plus, the implication of the Tjoflat Concurrence’s

suggestion that we need not follow Supreme Court precedent if we don’t

agree with it—that is, we need not accept the “robust consensus” standard

even though the Supreme Court has repeatedly identified it as a governing

standard, just because the Tjoflat Concurrence finds it wanting—is simply un-

tenable.

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24 ROSENBAUM, J., Concurring in part 23-10343

attempting to discern the meaning of life or design a spaceship to

take us to other galaxies. We’re talking about applying a legal

standard—“robust consensus of cases of persuasive authority”—

that our sister circuits have applied for years and that the decisions

of the Supreme Court help explain. Indeed, the Supreme Court

Court’s decisions and those of our sister circuits offer a workable

framework for courts and litigants to employ in applying the “ro-

bust consensus” standard.

I begin with Supreme Court precedent. Two firm rules fol-

low from Supreme Court holdings.

First, out-of-circuit federal appellate decisions can clearly es-

tablish the law. The Court told us as much in Wilson. See 526 U.S.

at 617. It’s just that a single out-of-circuit decision standing alone

can’t do so. See id. at 616–17. And that makes sense. After all, how

could a single case standing alone ever satisfy the definition of a

“robust consensus”?6

Second, the persuasive authorities generally must be unani-

mous in their view. Take Wilson, for instance. There, the Court

found the law wasn’t clearly established. In reaching this conclu-

sion, the Court found significant that “[b]etween the time of the

events of th[e] case and [the Court’s] decision, a split among the

6 We don’t parse the text of court opinions like we do statutes.

Reiter v. Sono-

tone Corp., 442 U.S. 330, 341 (1979). Still, we are bound by Supreme Court

holdings and want to be faithful to them. “Consensus” means “[a] general

agreement; collective opinion.” BLACK’S LAW DICTIONARY 382 (12th ed. 2024).

So by definition, more than one decisionmaker must be involved.

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23-10343 ROSENBAUM, J., Concurring in part 25

Federal Circuits in fact developed on the question whether media

ride-alongs that enter homes” constitute a violation of the Fourth

Amendment. Id. at 618. “If judges thus disagree on a constitu-

tional question,” the Court explained, “it is unfair to subject police

to money damages for picking the losing side of the controversy.”

Id.; see also Pearson, 555 U.S. at 244–45 (holding officers were entitled

to rely on a doctrine accepted by “three Federal Courts of Appeals

and two State Supreme Courts,” even though “their own Federal

Circuit had not yet ruled on” it). So unless no one could reasonably

believe that we would follow the minority approach, we should not

consider an alleged constitutional violation to be clearly established

when the federal courts of appeals and state supreme courts split

in their views. See Fowler, 979 F.3d at 78.

But beyond these core holdings, the Supreme Court has not

fleshed out the scope of the “robust consensus” standard. Nor has

the Court identified the minimum amount of persuasive authority

that a plaintiff must muster to show that reasonable state officials

had fair notice of the alleged constitutional violation.

That’s where our sister circuits come in. Over the past sev-

eral decades, our sister circuits have developed some case law on

what amounts to a “robust consensus of cases of persuasive au-

thority.”

To start, all our sister circuits agree that “[a] robust consen-

sus does not require the express agreement of every circuit.” Id. at

76. That is, the “robust consensus” standard does not benefit only

the plaintiff who is last in line.

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26 ROSENBAUM, J., Concurring in part 23-10343

As for the minimum number of cases necessary to amount

to a “robust consensus,” our sister circuits have offered a narrow

range of answers. At the lower end of the spectrum, the Seventh

and Eighth Circuits have determined that precedential decisions

from as few as two sister circuits can clearly establish the law. See,

e.g., Fis v. Dawson, 829 F.3d 895, 906 (7th Cir. 2016) (discussing

three combined decisions from two circuits); Hayes v. Long, 72 F.3d

70, 74 (8th Cir. 1995) (relying on decisions from two circuits and

one district court).

But two are not enough in other circuits. At least four cir-

cuits have found a “robust consensus” when three other circuits

have unanimously agreed in precedential decisions. See, e.g., Mal-

donado v. Fontanes, 568 F.3d 263, 270–71 (1st Cir. 2009); Varrone v.

Bilotti, 123 F.3d 75, 79 (2d Cir. 1997); Williams v. Bitner, 455 F.3d 186,

193 (3d Cir. 2006); Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir.

1991). A fifth—the Ninth Circuit—has described the agreement of

three other circuits’ precedential decisions as a “robust consensus”

in a case where it also concluded that the Ninth Circuit’s own prec-

edent clearly established the law. Tuuamelemalo v. Greene, 946 F.3d

471, 477–78 (9th Cir. 2019).

Three other circuits that have applied the “robust consen-

sus” test have done so when more circuits have unanimously

agreed on the law. But two of these circuits have not opined on

whether the agreement of fewer circuits in precedential decisions

could create a “robust consensus.”

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23-10343 ROSENBAUM, J., Concurring in part 27

The Fourth Circuit, for instance, found a “clear consensus of

persuasive authority” when five sister circuits had precedential de-

cisions on point. Williamson v. Stirling, 912 F.3d 154, 188 (4th Cir.

2018). But the court didn’t hold that a “robust consensus” couldn’t

exist with fewer than five. Similarly, the Fifth Circuit determined a

“robust consensus of persuasive authority existed” when four cir-

cuits had precedential decisions on the issue and two other circuits

had non-precedential decisions. Johnson v. Halstead, 916 F.3d 410,

420 (5th Cir. 2019). Like the Fourth Circuit, the Fifth Circuit did

not opine on whether fewer decisions could comprise a “robust

consensus.”

As for the Tenth Circuit, it has said that “the weight of au-

thority from other circuits may clearly establish the law when at

least six other circuits have recognized the right at issue.” Irizarry

v. Yehia, 38 F.4th 1282, 1284 (10th Cir. 2022). Even so, the Tenth

Circuit’s holding is somewhat nuanced. Four of the six other cir-

cuit decisions established the relevant right on “facts materially

similar” to those at issue in the Tenth Circuit’s case, and the remain-

ing two opinions expressed a relevant broad principle. See id. at

1294–95.

To sum up, then, ten circuits have applied the “robust con-

sensus” standard. Even when we view those decisions to apply the

standard most stringently, every one of those circuits has concluded

that the precedential decisions of fewer than seven other circuits

can make up a “robust consensus.” In other words, a robust—in-

deed super-“robust”—consensus of circuits agrees that, at the very

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28 ROSENBAUM, J., Concurring in part 23-10343

most, six precedential decisions are necessary for a “robust consen-

sus.”

That said, some very good reasons support a lower threshold

than six. Given the seven-circuit weight of authority that abides by

a three- (or two-) circuit consensus, I focus my comments on that

number.

On the one hand, a three-circuit precedential-decision re-

quirement ensures plaintiffs may successfully vindicate their con-

stitutional rights. Requiring too many appellate courts to address

an issue before concluding that a “robust consensus” exists would

fail to “hold public officials accountable when they exercise power

irresponsibly.” Pearson, 555 U.S. at 231. After all, it is “rare[]” to find

an “overwhelming consensus of authority” from “nearly every

court of appeals” that recognizes the challenged “conduct is viola-

tive of a constitutional right.” Booker v. S.C. Dep’t of Corr., 855 F.3d

533, 545 (4th Cir. 2017). A high threshold, then, allows an official

to escape “liability for unlawful conduct due to the fortuity that a

court in a particular jurisdiction had not yet had the opportunity to

address the issue.” Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431

(7th Cir. 1989). Congress had no such intention when it enacted

Section 1983, and Harlow did not plan to “provide . . . license to

lawless conduct.” 457 U.S. at 819.

On the other hand, concluding a “robust consensus of cases

of persuasive authority” exists when at least three federal appellate

courts align on an issue in precedential decisions appropriately

“shield[s] officials from harassment, distraction, and liability when

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23-10343 ROSENBAUM, J., Concurring in part 29

they perform their duties reasonably.” Pearson, 555 U.S. at 231.

Three decisions can constitute “a clear trend in the caselaw” that

gives “fair assurance that the recognition of the right by a control-

ling precedent was merely a question of time.” Brutsche, 881 F.2d

at 431 (relying on three federal appellate decisions to conclude de-

fendants may have violated clearly established law); cf. IAN

FLEMING, GOLDFINGER 166 (Penguin Books 2002) (“Mr. Bond, they

have a saying in Chicago: Once is happenstance. Twice is coinci-

dence. The third time it’s enemy action.”).

Plus, as I’ve noted, even if several courts perfectly align on a

federal issue, contrary persuasive authority may suggest the law is

still sufficiently “undeveloped” that it would be “unfair to subject

police to money damages for picking the losing side of the contro-

versy.” Wilson, 526 U.S at 617–18; Pearson, 555 U.S. at 244–45.

For instance, defendant officials may benefit from divisions

in the case law that develop after the relevant conduct in a dispute.

See Wilson, 526 U.S at 617–18. Or something unique about our own

precedent may make it reasonable for an officer to believe we

would not follow the existing “robust consensus.” Compare Terebesi

v. Torreso, 764 F.3d 217, 233 (2d Cir. 2014) (discounting persuasive

authority from two other circuits because an in-circuit unpublished

opinion supported the officer’s position), with Fowler, 979 F.3d at 78

(holding, based on in-circuit precedent, that “defendants could not

reasonably have believed that we would” follow the minority rule).

So the Supreme Court’s stringent clarity and consensus

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30 ROSENBAUM, J., Concurring in part 23-10343

requirements create a backstop against liability for reasonable state

officers.

Put simply, when three federal appellate holdings clearly

“apply . . . to the specific conduct in question,” Lanier, 520 U.S. at

271, it won’t be “a fortuitous coincidence” that we follow suit, Mar-

tin v. Heckler, 773 F.2d 1145, 1153 (11th Cir. 1985) (en banc) (adding

that “[h]armony among circuits should be a goal” and that “the law

is well served by a court’s attempt to achieve uniformity of deci-

sion”), disapproved of on other grounds by Texas State Tchrs. Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782 (1989). Persuasive case law

will have offered a warning that is “fair enough” to expose defend-

ants to monetary remedies for their violation of federal rights. La-

nier, 520 U.S. at 269. 7

The Tjoflat Concurrence complains that the “robust consen-

sus” standard “severs” qualified immunity “from what the law ac-

tually is” by clearly establishing law before we address the pertinent

7 To the extent that the Tjoflat Concurrence suggests that the “robust consen-

sus” standard somehow makes the opinions of our sister circuits binding and

turns us into a “spectator,” Tjoflat Conc. Op. at 24, that’s just wrong. We’re

always free to differ on the merits from the views of other circuits, no matter

how many other courts may unanimously agree with the opposite merits po-

sition. For that same reason, the Tjoflat Concurrence is wrong again in assert-

ing that the “robust consensus” standard would force us to impose liability

even if we think officials’ conduct is lawful or when other circuits disagree

with us. Id. at 23–24. My point is a simple one: if we agree with several other

federal appellate courts on a legal principle that clearly applies “to the specific

conduct in question,” Lanier, 520 U.S. at 271, then officials will have had notice

that is “fair enough” to impose damages liability, id. at 269.

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23-10343 ROSENBAUM, J., Concurring in part 31

legal issue and by causing officers to prophylactically conform to

decisions from our sister circuits (the “prophylactic-conformance

argument”). Tjoflat Conc. Op. at 25. The William Pryor Concur-

rence repeats a similar concern, suggesting officials are “obliged”

and “misled” to follow the “robust consensus,” even if we ulti-

mately decide it’s wrong. Pryor Conc. Op. at 2. Three, independ-

ent points doom this argument.

First, to the extent that the argument assumes officers would

respect non-existent constitutional rights, the argument misunder-

stands the point of qualified immunity. The doctrine protects indi-

viduals who “make reasonable but mistaken judgments.” al-Kidd,

563 U.S. at 743. It is not a license for state officials to push consti-

tutional boundaries with impunity. “Where an official could be ex-

pected to know that certain conduct would violate statutory or con-

stitutional rights, he should be made to hesitate . . . .” Harlow, 457

U.S. at 819 (emphasis added). And that hesitation (that is, prophy-

lactic conformance) is warranted when a “robust consensus of

cases of persuasive authority” informs officers that they are push-

ing constitutional boundaries. See al-Kidd, 563 U.S. at 741–42; Wil-

son, 526 U.S. at 617 (explaining a “consensus of cases of persuasive

authority” can cause “a reasonable officer” not to “believe[] that his

actions were lawful”). To be sure, we may ultimately rule that of-

ficial conduct falls on the permissible side of the constitutional line.

But if we decide otherwise, the state official had warning that was

“fair enough” to impose liability. Lanier, 520 U.S. at 269.

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32 ROSENBAUM, J., Concurring in part 23-10343

Second, to the extent the argument assumes we would pre-

fer to adopt stronger constitutional rules than those of our sister

circuits, see Pryor Conc. Op. at 2, the “robust consensus” standard

would not affect how we approach qualified immunity in those

cases. We would always be free to reject a “robust consensus” of

our sister circuits and adopt a stronger constitutional rule or pro-

tect additional federal rights.

And doing so would change exactly nothing from how we

operate currently, without the “robust consensus” standard. In

both situations—either with or without the “robust consensus”

standard—if we adopted a stronger constitutional rule than our sis-

ter circuits, the officer whose conduct matched the other circuits’

rule would still be entitled to qualified immunity in that case of first

impression. After all, even if we’re more protective of a plaintiff’s

rights than are our sister circuits, if several of our sister circuits

unanimously thought that the officers’ conduct didn’t violate the

Constitution, a plaintiff couldn’t establish that no reasonable officer

would have engaged in the officer’s conduct there. See Wilson, 526

U.S. at 618; Pearson, 555 U.S. at 244–45.

And third, even on the argument’s own logic, it proves too

much. The prophylactic-conformance argument’s logic would re-

quire us to overturn our current precedent that decisions of the

relevant state supreme court can clearly establish the law. If it truly

“makes no sense” to consider the law clearly established when it’s

possible we may decide otherwise on the merits, Tjoflat Conc. Op.

at 25, then it equally “makes no sense” for our qualified-immunity

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23-10343 ROSENBAUM, J., Concurring in part 33

precedent to credit state-court decisions. Those don’t bind us when

it comes to federal questions. Gallardo ex rel. Vassallo v. Dudek, 963

F.3d 1167, 1180 (11th Cir. 2020), aff’d sub nom. Gallardo ex rel. Vassallo

v. Marstiller, 596 U.S. 420 (2022). So under our current governing

standard, which allows rulings of the highest state court to clearly

establish the law, precisely the same potential for the alleged

prophylactic-conformance situation exists.

The highest court of a state could clearly establish a consti-

tutional violation before we have reason to consider the issue. So

officers in that state would have to prophylactically comply. But we

might later disagree with that state supreme court’s view of federal

law. And if we did, those officers would have prophylactically re-

spected nonexistent constitutional rights. Yet we’ve always consid-

ered a state supreme court decision sufficient to clearly establish

the law. See Marsh, 268 F.3d at 1032 n.10.

The Tjoflat Concurrence tries to escape this problem by as-

serting that I “misunderstand[] both our precedent and how the

notice inquiry works.” Tjoflat Conc. Op. at 26. But deflecting

doesn’t cure the Tjoflat Concurrence’s problem.

In particular, the Tjoflat Concurrence argues that “officials

must conform their conduct to [a state supreme] court’s rulings or

risk liability [for federal constitutional violations] in their own state

courts.” Id. at 26. And to be sure, a state supreme court decision

could bind a state officer that is a state-court defendant. But in the

context of Section 1983, that’s not a likely—or even a plausible—

risk. A Section 1983 defendant can always remove to a federal

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34 ROSENBAUM, J., Concurring in part 23-10343

forum that may not agree with the state court’s reading of federal

law. See, e.g., 28 U.S.C. § 1441(a). And he or she always will in that

circumstance. So in reality—not the Tjoflat Concurrence’s hypo-

thetical—a state supreme court decision that gets ahead of our

precedent is no different than a “robust consensus of cases of per-

suasive authority” that also gets ahead of our precedent.

Plus, even as to the potential liability of state officials under

state law in state court or administrative proceedings, the Tjoflat

Concurrence’s point is illusory. The Tjoflat Concurrence posits

that state officers would conform to state law, even if it differs from

federal law, because they would face “state tort liability, adminis-

trative discipline, or evidentiary exclusion in criminal proceedings”

if they didn’t. Tjoflat Conc. Op. at 26–27. But that analysis rests

on a faulty premise.

Under state law in all three states in the Eleventh Circuit,

official immunity protects state officials’ acts unless they are “per-

formed with actual malice or with intent to cause injury.” Dukes v.

Deaton, 852 F.3d 1035, 1044 (11th Cir. 2017) (Georgia law); Grider v.

City of Auburn, 618 F.3d 1240, 1254–55 (11th Cir. 2010) (noting that,

under Alabama law, a state agent is not immune if the plaintiff

“show[s] ‘bad intent’”); Baxter v. Roberts, 54 F.4th 1241, 1270 (noting

that, under Florida law, an officer “may not be held personally lia-

ble . . . unless such officer . . . acted in bad faith or with malicious

purpose or in a manner exhibiting wanton and willful disregard of

human rights, safety, or property” (emphases omitted) (quoting

Fla. Stat. § 768.28(9)(a))). To be clear, “[a]ctual malice means ‘a

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23-10343 ROSENBAUM, J., Concurring in part 35

deliberate intention to do wrong, and does not include implied

malice, i.e., the reckless disregard for the rights or safety of others’”;

an officer must intend “to cause the harm suffered by the plain-

tiffs.” Dukes, 852 F.3d at 1045 (quoting Murphy v. Bajjani, 282 Ga.

197, 203 (2007)).

That’s a much higher standard than qualified immunity im-

poses. As we’ve explained, “[q]ualified immunity invokes an ob-

jective standard; that is, if a reasonable person in the defendant’s

place could have acted the same way, the defendant’s subjective

intent is irrelevant.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1558

n.6 (11th Cir. 1993).

The upshot is that, under state law, if an officer doesn’t act

with “a deliberate intention to do wrong,” she doesn’t risk liability

under state law, even if she violates state rights she should have

known about and even if she would be liable under federal law if it

were the same as state law. So contrary to the Tjoflat Concur-

rence’s suggestion that officers must follow state law even if it dif-

fers from federal law at the risk of personal liability, that’s simply

not so, as long as the officer doesn’t act with “actual malice.” And

to the extent that state law conflicts with a robust consensus of per-

suasive authority under federal law, it’s hard to imagine how an

officer complying in good faith with federal law could act with “ac-

tual malice” under state law.

Apparently aware of this disconnect, the Tjoflat Concur-

rence tries to muddy the waters by arguing that it’s simply unfair

to hold officers in this Circuit to a “robust consensus of cases of

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36 ROSENBAUM, J., Concurring in part 23-10343

persuasive authority” because the standard of “fair notice demands

more than persuasive reasoning.” Tjoflat Conc. Op. at 27. But if a

“robust consensus of cases of persuasive authority” were the law

here like it is in every other circuit, officers would have both legal and

institutional reasons to be aware of decisions from other circuits.

As I’ve explained, see supra at 20–21, the notion that officers them-

selves keep on top of all legal developments without any guidance

is a legal fiction. Instead, attorneys regularly provide officers with

legal information so they will understand and follow the law.

Around the country, lawyers update law-enforcement officers on

legal developments not only from their own circuits but also from

a “robust consensus of cases of persuasive authority.” It’s just silly

to suggest that Eleventh Circuit attorneys would be incapable of

similarly educating law-enforcement officers with whom they

work and that officers here can’t get fair notice from a “robust con-

sensus of cases of persuasive authority” when every other officer in

the country can. Simply, if we adopted the “robust consensus”

standard, then officers will receive “fair notice.”

The Tjoflat Concurrence’s prophylactic-nonconformance

misfire is even more apparent when we consider our panel opin-

ions. Panel opinions may clearly establish the law, but an en banc

court may always disagree later. No matter whether “[a] published

panel decision is binding when issued,” Tjoflat Conc. Op. at 27, if

the en banc court vacates it and changes the rule, officers will have

prophylactically conformed to the panel decision in the intervening

period. And that’s precisely the alleged harm the Tjoflat Concur-

rence complains of.

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23-10343 ROSENBAUM, J., Concurring in part 37

Perhaps sensing this problem, the Tjoflat Concurrence tries

to move the goal posts from its original stated concern of prophy-

lactic conformance. It responds that “[p]anel decisions and state

supreme court rulings provide fair notice to officials because they

carry legal force at the time of the conduct.” Id. Okay. But that

doesn’t address the original “problem” the Tjoflat Concurrence

raises of prophylactic conformance—that is, respecting nonexistent

rights—when we later disagree with a state supreme court or panel

opinion. After all, regardless of notice concerns—which we all

agree drive liability under qualified immunity—when we interpret

federal law, we necessarily decide what the law “always meant.”

Rivers v. Roadway Exp., Inc., 511 U.S. 298, 313 n.12 (1994); see id. at

312–13 (“A judicial construction of a statute is an authoritative

statement of what the statute meant before as well as after the de-

cision of the case giving rise to that construction.”). As a result,

when officers follow panel opinions that our en banc Court later

overturns, it means they respected rights that never existed in the

first place.

So the Tjoflat Concurrence’s arguments are not unique to

the “robust consensus” standard. And our precedent already im-

plicitly rejects their logic. Prophylactic adherence isn’t qualified

immunity’s lodestar; fair notice is. So the law can be clearly estab-

lished at the time of the alleged misconduct even if it is eventually

disputed.

In short, persuasive case law can and does afford state offic-

ers fair notice of violations of federal rights. Still, this dispute

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38 ROSENBAUM, J., Concurring in part 23-10343

requires us to consider only whether unanimous decisions from

seven of our sister circuits can clearly establish an alleged statutory

or constitutional violation. That’s so because, as I discuss in the

next section, by 2017, at the time of the relevant conduct, at least

seven federal appellate courts had held that prison officials must

have reasonable suspicion to strip search a prison visitor. So any

reasonable definition of a “robust consensus of cases of persuasive

authority” means Gilmore defeats qualified immunity. Cf. Rucho v.

Common Cause, 588 U.S. 684, 744 (2019) (Kagan, J., dissenting)

(“How about the following for a first-cut answer: This much is too

much.”).

B. At the time of Defendants’ alleged misconduct, seven unani-

mous decisions from federal appellate courts clearly established

that prison officials need reasonable suspicion to strip search a

visitor.

Our precedent requires “reasonable suspicion for strip

searches of arrestees, students, and border entrants.” Gilmore, 111

F.4th at 1131; see Evans v. Stephens, 407 F.3d 1272, 1279–80 (11th Cir.

2005) (en banc) (arrestees); Cuesta v. Sch. Bd. of Miami-Dade Cnty.,

285 F.3d 962, 969 (11th Cir. 2002) (same); Safford Unified Sch. Dist.

No. 1 v. Redding, 557 U.S. 364, 377 (2009) (student); T.R. ex rel. Brock

v. Lamar Cnty. Bd. of Educ., 25 F.4th 877, 882, 855, 888 (11th Cir. 2022)

(same); United States v. Alfaro-Moncada, 607 F.3d 720, 729 (11th Cir.

2010) (border entrant); Brent v. Ashley, 247 F.3d 1294, 1302 (11th Cir.

2001) (same).

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23-10343 ROSENBAUM, J., Concurring in part 39

In our (now-vacated) panel opinion, we extended “that rea-

sonable-suspicion requirement to searches of prison visitors.” Gil-

more, 111 F.4th at 1131. We explained that, as of that time, nine of

our sister circuits had already so held. See Wood v. Clemons, 89 F.3d

922, 928–29 (1st Cir. 1996); Varrone, 123 F.3d at 79; Calloway v. Lokey,

948 F.3d 194, 202 (4th Cir. 2020); Thorne v. Jones, 765 F.2d 1270, 1276

(5th Cir. 1985); Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir.

1991); Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000); Hunter v.

Auger, 672 F.2d 668, 674 (8th Cir. 1982); Cates v. Stroud, 976 F.3d 972,

985 (9th Cir. 2020); Romo v. Champion, 46 F.3d 1013, 1020 (10th Cir.

1995). And crucially, by 2017, when Gilmore’s search occurred,

“seven circuits had required reasonable suspicion for a strip search

of a prison visitor.” Gilmore, 111 F.4th at 1131.

In short, there’s no reasonable dispute that a “robust consen-

sus of cases of persuasive authority” clearly established the legal

rule Gilmore now seeks to apply. Each of our sister circuits would

reach the same conclusion. In fact, many already have. Take the

Sixth Circuit. Thirty years ago, it determined that “the law was

clearly established” that “the Fourth Amendment required reason-

able suspicion before authorizing a body cavity search,” as “[t]hree

circuits had reached this conclusion” already. Spear v. Sowders, 71

F.3d 626, 630 (6th Cir. 1995); see also Varrone, 123 F.3d at 78–79 (con-

cluding the law clearly established that officers need reasonable sus-

picion to strip search a prison visitor because “three other circuits

had established” such a standard); Burgess, 201 F.3d at 945 (“In a long

and unbroken series of decisions by our sister circuits . . . it had be-

come well established . . . that strip searches of prison visitors were

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40 ROSENBAUM, J., Concurring in part 23-10343

unconstitutional in the absence of reasonable suspicion that the

visitor was carrying contraband.”).

So should Gilmore prove that Defendants lacked reasonable

suspicion to strip search her, it would not be “unfair to subject”

them “to money damages.” Wilson, 526 U.S. at 618.

Nor do Defendants’ arguments that no “robust consensus of

cases of persuasive authority” exists here have merit.

First, Defendants suggest that two of the seven pre-2017

cases Gilmore cites cannot provide fair warning to officials because

they say the reasonable-suspicion standard those cases announced

was dicta. In support of this assertion, Defendants note that the

officers in those cases had reasonable suspicion. See, e.g., Varrone,

123 F.3d at 79; Romo, 46 F.3d at 1020. But Defendants are mistaken

that these courts’ rulings amount to only dicta.

As I’ve explained, a governing legal rule is a holding, not

dicta, even if it is “technically unnecessary to a case’s resolution.”

Files, 63 F.4th at 928; see Andrew, 145 S. Ct. at 81. Think again about

Strickland; we treat Strickland as announcing a binding legal rule

even though Strickland failed to meet either prong of the Court’s

test there. See, e.g., Woodford, 537 U.S. at 22; Calhoun, 92 F.4th at

1347.

And in Varrone and Romo, the courts had to determine the

governing law before they could apply it. That is, to assess whether

the defendants’ reasonable suspicion in those cases was enough to

make their actions constitutional, those courts had to first establish

that reasonable suspicion complies with the Fourth Amendment

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23-10343 ROSENBAUM, J., Concurring in part 41

under the circumstances. So Varrone and Romo announce a binding

legal rule that officers must heed. As a result, it’s incorrect to de-

scribe their holdings as dicta.

Second, Defendants argue that no consensus exists because

the Hawaii Supreme Court purportedly twice upheld strip searches

of prison visitors without reasonable suspici

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