Eric Andre v. Clayton County, Georgia

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13253

____________________

ERIC ANDRE,

CLAYTON ENGLISH,

Plaintiffs-Appellants,

versus

CLAYTON COUNTY, GEORGIA,

CHIEF OF THE CLAYTON COUNTY

POLICE DEPARTMENT,

AIMEE BRANHAM,

MICHAEL HOOKS,

TONY GRIFFIN,

individually and in their official capacities

as police officers of the Clayton County

Police Department, et al.,

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2 Opinion of the Court 23-13253

Defendants-Appellees,

C. SMITH,

individually and in his official capacity

as a police sergeant of the

Clayton County Police Department,

Defendant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:22-cv-04065-MHC

____________________

Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.

BRANCH, Circuit Judge:

Clayton County, Georgia has a law-enforcement practice of

selectively stopping airline passengers on the jet bridge as they

attempt to board departing flights out of Hartsfield-Jackson Atlanta

International Airport (“Hartsfield-Jackson”). All of the stops here

occurred in the narrow and confined space of the jet bridge after

the passengers had presented their boarding passes and the gate

agent cleared them to board. During those stops inside the jet

bridge, officers request and hold onto the passengers’ identification

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and boarding passes while they ask questions. Among other things,

the officers ask if the passengers are carrying drugs and if they can

search the passengers’ luggage. This appeal requires us to decide

the constitutionality of that practice.

Eric André and Clayton English (“plaintiffs”) alleged that

when Clayton County police officers stopped them as part of that

practice, the officers violated their Fourth Amendment rights to be

free from unreasonable searches and seizures. Plaintiffs further

alleged that the stops were based on their race in violation of their

equal-protection rights. Defendants in this case are several

individual officers who conducted or supervised the stops (“the

individual defendants”) and Clayton County (all collectively

“defendants”).

The district court dismissed all of plaintiffs’ claims for failure

to plausibly allege any constitutional violations and granted

qualified immunity to the individual defendants. We conclude,

however, that plaintiffs plausibly alleged that Clayton County

subjected them to unreasonable searches and seizures.

Accordingly, after careful review and with the benefit of oral

argument, we reverse the dismissal of plaintiffs’ Fourth

Amendment claims against Clayton County and affirm the

remainder of the district court’s dismissal.

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I. Background

In 2022, plaintiffs brought this suit. According to plaintiffs’

operative complaint,1 their claims arise out of “the Clayton County

Police Department’s (‘CCPD’) operation of an ‘interdiction’

program” (the “drug interdiction program”) at Hartsfield-Jackson.

Defendants’ drug interdiction program “consists of armed CCPD

officers and Clayton County District Attorney’s Office (‘CCDAO’)

investigators waiting in jet bridges . . . to selectively intercept

passengers, take their boarding passes and identifications,

interrogate them before they board their flights, and search their

carry-on luggage, all in the name of combatting drug trafficking.”

Plaintiffs alleged that although “CCPD calls these stops ‘consensual

encounters’ and ‘random,’” the stops “rely on coercion, and targets

are selected disproportionately based on their race.”

Plaintiffs are two black celebrities who were subjected to the

drug interdiction program. In 2020, English flew from Atlanta to

Los Angeles for work. English cleared both TSA security and the

boarding pass check by the gate agent. After being cleared to board

by the gate agent, English entered the confined and narrow jet

bridge to board his flight when CCPD officers 2 stopped him on the

jet bridge. The officers flashed their badges and asked English

1 Because this appeal reaches us on a motion to dismiss, we accept as true the

factual allegations in the complaint. Meshal v. Comm’r, Ga. Dep’t of Pub. Safety,

117 F.4th 1273, 1285 (11th Cir. 2024).

2Plaintiffs alleged that these officers were individual defendants Kayin

Campbell and Tony Griffin.

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whether he was carrying any illegal drugs. English denied carrying

illegal drugs. English “understood that he was not free to leave and

continue his travel while the officers were questioning him.”

Then, “the officers instructed Mr. English to step to the side of the

jet bridge.” English complied and “understood that he did not have

any choice but to comply.” The officers then stood on either side

of English, “effectively blocking his path onto the plane,” and asked

English to “hand over his ID and boarding pass.” English

“understood that he did not have any choice.” The officers again

asked English if he was carrying illegal drugs and asked about

English’s travel to Los Angeles. Then, while “the officers

continued to retain Mr. English’s ID and boarding pass, one officer

stated that he wanted to search Mr. English’s carry-on luggage.”

“Believing he had no choice, Mr. English acquiesced.” After

searching English’s luggage, the officers returned his ID and

boarding pass and told English he was free to leave. “Throughout

the encounter, Mr. English was worried that if he said anything the

officers perceived as ‘out of line,’ he would not be allowed to board

the plane or reach his destination.”

André had a similar experience. In 2021, André boarded a

flight from Charleston, South Carolina, bound for Atlanta. From

there, André would board his connecting flight home to Los

Angeles. In Atlanta, André lined up to board when his group was

called. He was the only black passenger in the group. After being

cleared by the gate agent to board, André entered the jet bridge.

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Inside the jet bridge, a CCPD officer and CCDAO investigator3

obstructed André’s path. The officers flashed their badges and

began asking André if he was carrying any illegal drugs, such as

“cocaine, methamphetamine, prescription drugs that were not

prescribed to him by a doctor, or other narcotics.” André denied

carrying illegal drugs but believed “he did not have any choice but

to continue to reply to the officers’ questions, and that he was not

free to leave.” The officers asked André to hand over his boarding

pass and ID, and André complied, believing “he could [not] say no.”

The officers recorded André’s information and continued to ask

André questions about his travel plans. One officer told André that

they were conducting “random” stops and that their questions

were “protocol.” “After approximately five minutes of standing in

the narrow jet bridge and being questioned, Mr. André was told by

the officers that he was free to leave and board the plane.” 4

Plaintiffs alleged that their experiences “were not isolated

incidents,” but “part of a longstanding, formal CCPD program”

that CCPD operates “out of the Atlanta Airport.” As part of the

program, CCPD officers and CCDAO investigators “wait in the jet

bridge of departing domestic flights and conduct what they claim

are ‘random,’ ‘consensual’ encounters with passengers attempting

to board their flights.” These stops generally resemble the

3 Plaintiffs alleged that these officers were individual defendants Aimee

Branham and Michael Hooks.

4 Plaintiffs also allege similar experiences by non-parties to this case, Jean Elie

in 2019 and Preston Lewis in 2017.

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experiences of English and André. But according to plaintiffs,

“these encounters are neither random nor consensual.” Moreover,

plaintiffs alleged that individual defendant Sergeant Smith had

“supervisory responsibilities” over the drug interdiction program

and knew about the allegedly unlawful nature of the stops carried

out by his subordinates but failed to intervene.

In support of their contention that the drug interdiction

program is not consensual, plaintiffs pointed to the coerciveness of

modern airport security. Specifically, plaintiffs described the

heightened post-9/11, TSA-run airport security and noted that

passengers “are bound to follow” law enforcement’s orders when

going through airport security. Plaintiffs alleged that defendants

are “[a]ware of the already profoundly coercive nature of law

enforcement encounters in the airport generally,” and they

“choose a uniquely coercive moment, manner, and location to stop

passengers” by “accost[ing] passengers in narrow, highly-restricted

jet bridges, . . . catching [passengers] off guard and blocking their

paths,” then “hold[ing] the passengers’ identifications and tickets

while bombarding them with questions.” “By design, all of these

factors exert tremendous coercive pressure on an individual

passenger in the jet bridge to acquiesce to the officers’ wishes.”

Plaintiffs alleged that “[r]easonable individuals interdicted by

CCPD officers in jet bridges would not and do not believe they are

free to decline the officers’ requests, or to ignore and navigate

around the officers absent affirmative permission.”

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Plaintiffs also alleged that Clayton County’s drug

interdiction program impermissibly targets passengers based on

race. Specifically, plaintiffs alleged that the drug interdiction

program “purposefully discriminates against Black passengers, and

against passengers of color more generally.” In support, plaintiffs

alleged that for 378 of the 402 documented stops during the

relevant period, 5 CCPD recorded the race of the passenger, and

56% of the passengers were black. Yet “only 8% of American air

travelers are Black” and “[t]he Atlanta Airport’s domestic airline

population reflects the general population of American air

travelers.” They maintained that this disparity is statistically

significant.

Out of these facts, plaintiffs asserted claims for (1) unlawful

seizures in violation of the Fourth and Fourteenth Amendments,

(2) an unlawful search in violation of the Fourth and Fourteenth

Amendments, (3) violations of the Equal Protection Clause of the

Fourteenth Amendment, and (4) violations of 42 U.S.C. § 1981.

Plaintiffs brought their claims under 42 U.S.C. § 1983. Defendants

moved to dismiss plaintiffs’ amended complaint. The district court

granted defendants’ motion.

The district court held that: (1) plaintiffs failed to state a

claim for unlawful seizure because their interactions with

defendants were voluntary; (2) English failed to state a claim for

unlawful search because the search of his bag was voluntary;

5 Plaintiffs define the relevant time period as “September 2020 through April

2021.”

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(3) plaintiffs failed to state an equal-protection claim because they

failed to allege a similarly situated comparator, a discriminatory

effect, and a discriminatory intent; (4) plaintiffs’ claims against

individual officers in their official capacities were due to be

dismissed because they were duplicative of plaintiffs’ claims against

Clayton County, which is a named defendant; 6 (5) the individual

officers were entitled to qualified immunity on plaintiffs’ claims

against them in their individual capacities; (6) plaintiffs’ claims

under 42 U.S.C. § 1981 failed because plaintiffs failed to plausibly

allege underlying constitutional violations or Clayton County’s

liability; and (7) plaintiffs’ claims against Sergeant Smith based on

supervisory liability failed because plaintiffs did not plausibly allege

underlying constitutional violations. Plaintiffs timely appealed.

II. Standard of Review

“We review de novo a district court’s ruling on a motion to

dismiss, accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff.” Moore

v. Cecil, 109 F.4th 1352, 1365 (11th Cir. 2024) (quotation omitted).

“To prevent dismissal under Rule 12(b)(6), the plaintiff must allege

sufficient facts to state a claim for relief that is ‘plausible on its

face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

6 These dismissals included the district court’s dismissal of plaintiffs’ claims

against the Chief of CCPD in his official capacity. On appeal, plaintiffs do not

challenge this part of the district court’s order. Accordingly, we summarily

affirm these dismissals. See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1309 (11th

Cir. 2009) (“A claim asserted against an individual in his or her official capacity

is, in reality, a suit against the entity that employs the individual.”).

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(2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, “[w]e

review de novo determinations that officers are entitled to qualified

immunity.” Ingram v. Kubik, 30 F.4th 1241, 1249 (11th Cir. 2022).

When a defendant moves to dismiss a complaint on qualified-

immunity grounds, “the district court must dismiss any claims that

fail to allege a violation of clearly established law.” Id. at 1250.

III. Discussion

Before we consider plaintiffs’ claims, we describe some

background principles that apply to the rest of our discussion. All

of plaintiffs’ claims arise under 42 U.S.C. § 1983. Under that

statute, a plaintiff may sue any “person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be

subjected” the plaintiff “to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws” of the United

States. 42 U.S.C. § 1983. To state a claim under this statute, “a

plaintiff must allege that (1) the defendant deprived him of a right

secured under the United States Constitution or federal law and

(2) such deprivation occurred under color of state law.” Richardson

v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010).

Not all deprivations of a right, however, are redressable. As

we will discuss in more detail below, the doctrine of “qualified

immunity offers complete protection for government officials sued

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in their individual capacities if their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known.” Grider v. City of Auburn, 618 F.3d 1240,

1254 (11th Cir. 2010) (alteration adopted) (quotation omitted).

Municipal entities, on the other hand, “are not protected from

compensatory damages by the doctrine of qualified immunity” like

individual officials are. Moore v. Morgan, 922 F.2d 1553, 1556 (11th

Cir. 1991). Instead, suits against municipal entities encounter a

different hurdle: a municipal entity may be liable for monetary

damages under 42 U.S.C. § 1983 only if the entity’s policy or

custom caused a deprivation of the plaintiff’s federal rights. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

In this case, plaintiffs argue that (1) they plausibly alleged the

individual defendants, acting under color of state law, deprived

them of their Fourth Amendment and equal-protection rights,

(2) the individual defendants are not entitled to qualified immunity

on any of plaintiffs’ claims, and (3) they plausibly alleged their

claims against Clayton County under Monell. For their part,

defendants do not contest that they acted under color of state law

at all relevant times. Thus, our review turns on (1) whether

plaintiffs plausibly alleged that they were deprived of federal rights,

and (2) which, if any, defendants may be liable for those

deprivations. We take each of plaintiffs’ claims in turn, addressing

qualified immunity and Monell liability for each claim as we go.

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A. Plaintiffs plausibly alleged unreasonable seizures

Plaintiffs argue that their “complaint plausibly allege[d] that

CCPD officers . . . unlawfully restrained Mr. André’s and Mr.

English’s freedom of movement when the officers stopped them

on the jet bridge.” Plaintiffs also argue that these encounters were

not consensual. Defendants respond that plaintiffs’ encounters

with CCPD officers did not rise to the level of “unlawful seizure”

because they “were brief, voluntary, and non-coercive.” We agree

with plaintiffs.

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. “A

person has been ‘seized’ within the meaning of the Fourth

Amendment only if, in view of all the circumstances surrounding

the incident, a reasonable person would have believed that he was

not free to leave.” California v. Hodari D., 499 U.S. 621, 627–28

(1991) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)

(opinion of Stewart, J.)). In other words, a person’s “freedom of

movement” must be restrained “by means of physical force or a

show of authority.” Mendenhall, 446 U.S. at 553 (opinion of

Stewart, J.). “[T]he test for existence of a ‘show of authority’ is an

objective one: not whether the citizen perceived that he was being

ordered to restrict his movement, but whether the officer’s words

and actions would have conveyed that to a reasonable person.”

Hodari, 499 U.S. at 628; see also Michigan v. Chesternut, 486 U.S. 567,

573–74 (1988) (observing that the Supreme Court has embraced the

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objective test laid out in Justice Stewart’s opinion in Mendenhall).

“Examples of circumstances that might indicate a seizure, even

where the person did not attempt to leave, would be the

threatening presence of several officers, the display of a weapon by

an officer, some physical touching of the person of the citizen, or

the use of language or tone of voice indicating that compliance

with the officer’s request might be compelled.” Mendenhall, 446

U.S. at 554 (opinion of Stewart, J.).

In our seminal case on airport stops, we have enumerated

further factors to determine whether a seizure occurred in an

airport by “looking to the totality of circumstances of an airport

stop.” United States v. Berry, 670 F.2d 583, 597 (5th Cir. Unit B 1982)

(en banc). 7 That totality-of-the-circumstances inquiry requires us to

“closely scrutinize whether those circumstances [surrounding the

stop] reveal the presence of any coercion.” Id. The relevant factors

include: “blocking an individual’s path or otherwise intercepting

him to prevent his progress”; “retaining an individual’s ticket for

more than a minimal amount of time or by taking a ticket over to

a ticket counter”; “statements by officers that individuals are

suspected of smuggling drugs”; “[s]tatements which intimate that

an investigation has focused on a specific individual”; and

“informing an individual that an innocent person would cooperate

with police.” Id. We have also emphasized that “blocking an

7 “We adopted as binding precedent all Fifth Circuit . . . Unit B decisions from

any date.” United States v. Schultz, 565 F.3d 1353, 1360 n.4 (11th Cir. 2009) (per

curiam).

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individual’s path” is “a consideration of great, and probably

decisive, significance.” Id.

Several of our cases about airport stops apply Berry and

provide guidance on whether plaintiffs plausibly alleged unlawful

seizures in this case. On the lawful side of the ledger, in United

States v. Jensen, two Drug Enforcement Agency (“DEA”) agents

approached the defendant at his gate, sat down next him, identified

themselves as DEA agents, and asked the defendant if they could

talk with him. 689 F.2d 1361, 1362 (11th Cir. 1982). The defendant

agreed. Id. When the agents requested the defendant’s ticket and

ID, the defendant complied. Id. Shortly thereafter, the agents

returned the ticket and ID and told the defendant, “[W]e’re looking

for drugs and narcotics at the airport. Are you carrying any drugs

or narcotics either on your person or in your luggage?” Id. The

defendant said no, and then consented to a search of his luggage.

Id. We disagreed with the defendant’s argument “that, after being

asked for documents and identification, being told that the person

questioning him was a narcotics agent, being asked whether he was

carrying drugs, and being asked to consent to a search, no person

would have felt free to leave.” Id. at 1363. Specifically, we said that

the lead agent’s “request for identification, identification of himself,

and question concerning whether [the defendant] was carrying

drugs indicated no more than an interrogation as part of a more

general inquiry into drug smuggling.” Id. The agent “never

accused [the defendant] of carrying drugs and never even stated

that he suspected Jensen of carrying drugs.” Id. We concluded that

“[n]o seizure occurred on the facts at issue.” Id. at 1364.

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In United States v. Armstrong, we similarly found the airport

stop was lawful. In that case, an officer approached the defendant

“in the public concourse” of the airport. 722 F.2d 681, 684 (11th

Cir. 1984). There, “the only display of authority occurred when

the detective approached [the defendant] and identified himself as

a deputy sheriff.” Id. The officer “requested, but did not demand

to see, the appellant’s identification and ticket. He notified

appellant that he was free to leave and that he did not have to

consent to the search.” Id. Accordingly, we “conclude[d] that the

detective’s initial approach involved no restraint of appellant’s

liberty, but rather that it fell into the first Berry category of a non-

coercive police-citizen encounter” in an airport which “is outside

the realm of [F]ourth [A]mendment protection.” Id. We

emphasized that the defendant did “not assert[] any facts to show

that [the officer] kept both pieces of identification while continuing

to interrogate him.” Id. at 685. Instead, the officer “stressed to both

men that they were free to leave.” Id.

Finally, in United States v. Puglisi, we again held the airport

stop did not violate the Fourth Amendment. The officer

approached the defendant in the airport terminal “from the side

and spoke always in [a] normal conversational tone.” 723 F.2d 779,

784 (11th Cir. 1984). The officer “asked permission” to speak with

the defendant; “he did not simply walk up to [the defendant] and

begin asking questions.” Id. The officer “never held [the

defendant’s] ticket or identification longer than 20–30 seconds,”

instead “returning [the documents] promptly each time” the officer

asked for them. Id. The officer also did not tell the defendant that

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he was a suspected drug courier, did not request that the defendant

accompany him to a DEA office, and informed the defendant that

he could refuse to be searched. Id. On these facts, we held that this

encounter “clearly did not constitute a seizure.” Id.

On the other hand, in United States v. Elsoffer, we concluded

that a “seizure” triggering the Fourth Amendment’s protections

had occurred. In that case, we observed that the officer conducting

the airport stop in the airport terminal “retained [the defendant’s]

ticket while asking for his driver’s license, then retained both

documents while interrogating him.” 671 F.2d 1294, 1297 (11th

Cir. 1982). We stated that, “[g]iven the circumstances surrounding

an airport stop, [the defendant] hardly could have felt free to leave

while [the officer] retained the ticket—especially since [the

defendant] needed the ticket in order to continue his flight to New

York.” Id. Accordingly, we “h[e]ld that a seizure occurred when

[the officer] retained the [defendant’s] ticket while asking for

further identification.”8 Id.

Assessing the totality of the circumstances in this case using

the Berry factors and Berry’s progeny, plaintiffs plausibly alleged

they were “seized” within the meaning of the Fourth Amendment.

We begin with English’s allegations. The first Berry factor,

whether officers blocked the passenger’s path or intercepted the

8 The seizure, however, did not violate the defendant’s Fourth Amendment

rights because the officers had reasonable suspicion to seize him. See Elsoffer,

671 F.2d at 1297.

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passenger to prevent his progress, is present here: English plausibly

alleged that defendants intercepted him and blocked his path to his

plane on the narrow jet bridge. We accord “great, and probably

decisive, significance” to this factor. Berry, 670 F.2d at 597.

The second Berry factor, whether officers retained an

individual’s ticket for more than a minimal amount of time, is also

present as to English: the officers in this case held onto English’s ID

and boarding pass for the duration of the encounter, while

“continu[ing] to ask Mr. English if he was carrying illegal drugs”

and “ask[ing] questions about his profession” and his travel. See id.

We have emphasized the fact that officers retained a passenger’s

ticket or identification while questioning the passenger in several

cases finding a seizure. 9 See Elsoffer, 671 F.2d at 1297; see also United

States v. Thompson, 712 F.2d 1356, 1360–61 (11th Cir. 1983); United

States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984); cf. Jensen, 689

F.2d at 1362 (noting that the officer promptly returned the

9 At oral argument, defendants insisted that because both plaintiffs had already

shown their boarding passes and IDs to the airlines to board their flights,

nothing stopped them from continuing to board their flights even while

officers retained those documents. Defendants argued that plaintiffs would

merely be inconvenienced by having to reclaim their IDs later or get new IDs

after their travels. Evidently, defendants theorize that a reasonable person

would willingly abandon his physical government ID and boarding pass

(which might also be on his cell phone) to law enforcement as he boarded a

departing plane. Common sense and the Supreme Court both refute this

theory. See Florida v. Bostick, 501 U.S. 429, 435–36 (1991) (stating that a person

would not “feel free to leave” a soon-to-depart bus in part because the person

would risk “losing whatever baggage he had locked away in the luggage

compartment” of the bus).

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passenger’s ticket and ID before questioning the passenger);

Armstrong, 722 F.2d at 685 (same); Puglisi, 723 F.2d at 784 (same).

Moreover, in our cases applying Berry, we have enumerated

an additional factor concerning whether officers “simply walk[ed]

up to [the passenger] and beg[a]n asking questions” or whether the

officers asked to speak with the passenger first to alert the

passenger of the voluntary nature of the stop. Puglisi, 723 F.2d at

784; see Armstrong, 722 F.2d at 684. In this case, English plausibly

alleged that the officers stopped him and began asking questions

without telling him he could leave until after they finished

questioning him.

Proceeding through the rest of English’s allegations, the

remaining Berry factors ask whether the officers made any specific

accusations or intimations that the passenger was carrying

contraband. See Berry, 670 F.2d at 597; Jensen, 689 F.2d at 1363.

Although these factors were not present in English’s allegations,

the absence of these factors do not overcome the coercive nature

of the individual defendants’ actions that we have already

discussed.

To sum up our discussion of English’s allegations, in Berry

and its progeny, we have emphasized that the presence of the first

two Berry factors favors finding that a seizure occurred. See Berry,

670 F.2d at 597; Elsoffer, 671 F.2d at 1297; Thompson, 712 F.2d at

1360–61; Chemaly, 741 F.2d at 1352; Jensen, 689 F.2d at 1362;

Armstrong, 722 F.2d at 685; Puglisi, 723 F.2d at 784. The presence of

these two factors plus the fact that officers simply walked up to

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English and began asking questions weighs in favor of finding that

English plausibly alleged a seizure. See Puglisi, 723 F.2d at 784;

Armstrong, 722 F.2d at 684. Looking to the totality of the

circumstances, English plausibly alleged he was “seized” within the

meaning of the Fourth Amendment. 10

We reach the same conclusion with respect to André. Like

English, André plausibly alleged the presence of the first two Berry

factors. He alleged that individual defendants intercepted him on

the jet bridge, blocking his path to continue onto his plane. Then,

individual defendants “continued to ask Mr. André questions . . .

about his travel plans and his reason for flying” while they held onto

“his ticket and government ID.” As discussed, we have emphasized

that the presence of the first two Berry factors are important in

finding that a seizure occurred. See Berry, 670 F.2d at 597; Elsoffer,

671 F.2d at 1297; Thompson, 712 F.2d at 1360–61; Chemaly, 741 F.2d

at 1352; Jensen, 689 F.2d at 1362; Armstrong, 722 F.2d at 685; Puglisi,

723 F.2d at 784. And as with English, the officers simply walked up

to André and “began challenging him with a series of questions,”

and they did not inform André he was free to leave until after they

10 Plaintiffs also stress that their encounters occurred post-9/11, which

changed how a “reasonable person” might view encounters with law

enforcement at an airport, i.e., a reasonable person is more likely to feel

coerced into compliance. We have never specifically addressed whether post-

9/11 airport stops should be treated differently than pre-9/11 airport stops.

But we leave that question for another day because, as discussed, plaintiffs

plausibly alleged that their encounters in this case were Fourth Amendment

seizures even under our pre-9/11 caselaw.

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20 Opinion of the Court 23-13253

finished questioning him. The presence of this factor also weighs

in favor of finding that André plausibly alleged he was “seized”

within the meaning of the Fourth Amendment. See Puglisi, 723 F.2d

at 784; Armstrong, 722 F.2d at 684. 11

Faced with our on-point precedent showing that both

plaintiffs were seized under the Fourth Amendment, defendants

rely on inapposite cases to argue no seizure occurred. In particular,

defendants cite United States v. Drayton, 536 U.S. 194 (2002), INS v.

Delgado, 466 U.S. 210 (1984), and Bostick to argue that “an officer’s

positioning between a passenger and an exit, as well as the fact that

questioning occurred in a narrow space, does not lead to the

conclusion that” a seizure occurred. None of these cases helps

defendants.

In Drayton, the Supreme Court determined that officers did

not violate the Fourth Amendment when questioning passengers

on a bus. 536 U.S. at 197. The Supreme Court noted that when

the officers boarded the bus, the lead officer “left the aisle free so

that respondents could exit.” Id. at 204. The record reflected “no

blocking of exits.” Id. Although another officer was “position[ed]

at the front of the bus,” that officer also “left the aisle clear.” Id. at

205. Drayton is distinguishable because the officers did not block

the paths of the bus passengers to leave the bus, see id. at 203–05,

11 As with English, André also did not allege the presence of the Berry factors

that ask whether the officers made any specific accusations or intimations that

he was carrying contraband. See Berry, 670 F.2d at 597; Jensen, 689 F.2d at 1363.

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but the individual defendants here blocked plaintiffs’ paths to board

the plane, see Berry, 670 F.2d at 597.

In Delgado, the Supreme Court considered the former

Immigration and Naturalization Service’s (“INS”) practice of

sending agents into worksites to determine if any illegal aliens were

present. 466 U.S. at 211–12. The Court observed that when

undertaking this practice, the INS “placed agents near the exits of

the factory sites.” Id. at 218. The Court noted, however, that the

workers remained free to move about the factories to do their jobs

and faced only “the mere possibility” of being questioned if they

tried to leave the factories. Id. at 218–19. Indeed, two respondents

in the case left their buildings and were not questioned or detained

at all. Id. at 219 n.7. Accordingly, the Court “reject[ed] the claim”

that the placement of the agents near factory exits constituted a

seizure of the workers at the factories. Id. at 218. Again, these facts

are distinguishable from this case because the individual defendants

here did block plaintiffs’ movement to question them.

And in Bostick, the Supreme Court again considered a drug

interdiction program that required officers to “board buses at

scheduled stops and ask passengers for permission to search their

luggage.” 501 U.S. at 431. Bostick, the respondent, argued that

officers “seized” him under the Fourth Amendment when they

questioned him on a bus “because there is nowhere to go on a bus.”

Id. at 435. He argued “there [was] little room to move around”

while officers questioned him “in the cramped confines of a bus.”

Id. The Court observed, however, that “Bostick’s freedom of

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22 Opinion of the Court 23-13253

movement was restricted by a factor independent of police

conduct—i.e., by his being a passenger on a bus.”12 Id. at 436.

Bostick’s “bus was about to depart,” so if he “disembarked, he

would have risked being stranded and losing whatever baggage he

had locked away in the luggage compartment.” Id. at 435. In other

words, Bostick “would not have felt free to leave the bus even if

the police had not been present.” Id. at 436. Accordingly, the Court

held that “the ‘free to leave’ analysis . . . [was] inapplicable.” 13 Id.

Here, however, the individual defendants blocked plaintiffs’ paths

and questioned them as they tried to walk onto their flights.

Both plaintiffs plausibly alleged the presence of several Berry

factors and other factors we have emphasized: plaintiffs’ paths

were blocked by officers, the officers held onto plaintiffs’ IDs and

boarding passes during questioning, and the officers did not inform

plaintiffs of the voluntary nature of the questioning or that

plaintiffs were free to leave until after officers finished their

questioning. See Berry, 670 F.2d at 597; Elsoffer, 671 F.2d at 1297;

Thompson, 712 F.2d at 1360–61; Puglisi, 723 F.2d at 784.

12 The Court explicitly “refrain[ed] from deciding whether or not a seizure

occurred” in Bostick. 501 U.S. at 437. Instead, the Court rejected the Florida

Supreme Court’s use of a per se test to determine if a seizure occurred,

emphasizing that lower courts should consider “the totality of the

circumstances.” Id.

13 By contrast, the Court distinguished police encounters within airports, the

exact situation we face in this appeal: “[w]hen police attempt to question a

person who is walking . . . through an airport lobby, it makes sense to inquire

whether a reasonable person would feel free to continue walking.” Id. at 435.

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23-13253 Opinion of the Court 23

Accordingly, we conclude that plaintiffs plausibly alleged they

were “seized” under the Fourth Amendment.

But a seizure alone is not a violation of the Fourth

Amendment, as a brief seizure is still “reasonable” if the officers had

a reasonable suspicion of wrongdoing. See Thompson, 712 F.2d at

1359. Accordingly, we must determine whether the alleged

seizures were nonetheless reasonable under the Fourth

Amendment because they were supported by at least a reasonable

suspicion of wrongdoing. See id. Here, plaintiffs alleged and

defendants do not dispute there was no basis for reasonable

suspicion at all. According to plaintiffs, the encounters in this case

were based on race. 14 Accordingly, plaintiffs have plausibly alleged

that they suffered unreasonable seizures which violate the Fourth

Amendment. Cf. Elsoffer, 671 F.2d at 1297 (finding that a passenger

was “seized” under similar circumstances but declining to find a

violation of the passenger’s Fourth Amendment rights because the

officers had reasonable suspicion to stop the passenger). Having

concluded that plaintiffs plausibly alleged that their Fourth

Amendment rights were violated, we next determine which

defendants, if any, may be liable for those violations.

14 As we will explain, however, although plaintiffs allege that the encounters

in this case were race-based, they fail to plausibly allege that the defendants in

this case acted with a discriminatory purpose.

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24 Opinion of the Court 23-13253

1. The individual defendants are entitled to

qualified immunity for the unreasonable

seizures

The district court held that, even if plaintiffs plausibly

alleged a Fourth Amendment violation, the individual defendants

were entitled to qualified immunity because, in relevant part, the

law was not clearly established. On appeal, plaintiffs argue that

defendants violated clearly established law that Berry settled

decades ago. Defendants respond that Berry only established how

fact-intensive the relevant inquiry is, and defendants highlight

Armstrong, Puglisi, and Jensen—which we have already discussed in

depth—as similar cases in which we found no constitutional

violations. We agree with defendants.

“In general, when government officials are performing

discretionary duties, . . . they are entitled to qualified immunity.” 15

Edger v. McCabe, 84 F.4th 1230, 1235 (11th Cir. 2023). “A plaintiff

may rebut this entitlement by showing that the government

officials (1) committed a constitutional violation; and (2) that this

violation was clearly established in law at the time of the alleged

misconduct.” Id. (quotation omitted). “The test is conjunctive,

and if a plaintiff fails either prong of the qualified immunity

analysis, his claim is barred.” Id. A plaintiff may show that the law

is clearly established through one of three ways: (1) “show[ing] that

a materially similar case has already been decided, whose facts are

15 Plaintiffs do not dispute that the individual defendants in this case were

performing discretionary duties at all relevant times.

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23-13253 Opinion of the Court 25

similar enough to give the police notice”; (2) “show[ing] that a

broader, clearly established principle” derived from “general

statements of the law contained within the Constitution, statute,

or caselaw” should “control the novel facts of his case”; or

(3) “show[ing] that the officer’s conduct so obviously violates the

[C]onstitution that prior case law is unnecessary.” Id. (alteration

adopted) (emphasis and quotations omitted); see also Gilmore v. Ga.

Dep’t of Corr., 144 F.4th 1246, 1258 (11th Cir. July 11, 2025) (en banc).

When determining whether a rule is “clearly established,”

we must keep in mind that “[t]he rule’s contours must be so well

defined that it is clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Dist. of Columbia v. Wesby,

583 U.S. 48, 63 (2018) (quotation omitted). “This requires a high

degree of specificity.” Id. (quotation omitted). “A rule is too

general if the unlawfulness of the officer’s conduct does not follow

immediately from the conclusion that the rule was firmly

established.” Id. at 64 (alteration adopted) (quotation omitted).

Plaintiffs proceed using the second method for showing that

the law is clearly established by contending that Berry clearly

established when an officer “seizes” a passenger within the

meaning of the Fourth Amendment. 16

16 By relying on Berry, plaintiffs do not argue that a materially similar case has

been decided which gives the individual defendants notice of the unlawfulness

of their conduct (after all, we concluded in Berry that no unreasonable seizure

occurred). Nor do plaintiffs suggest that the individual defendants’ “conduct

so obviously violate[d] the [C]onstitution that prior case law is unnecessary.”

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26 Opinion of the Court 23-13253

We disagree for three reasons. First, Berry did not announce

“general statements of the law” that “clearly established” when a

Fourth Amendment seizure occurs. Edger, 84 F.4th at 1235

(quotation omitted). Instead, Berry concluded only that “in looking

to the totality of circumstances of an airport stop, a court should

closely scrutinize whether those circumstances reveal the presence

of any coercion.” 670 F.2d at 597. In so doing, Berry did not purport

to “provide a catalog of all factors that might be relevant to a

court’s inquiry.” Id. Instead, we noted “some specific factors . . .

on which a court should place great weight.” Id. 17 Second, our

cases applying Berry do not demonstrate a clearly established rule,

either. We have come to varying conclusions when applying the

Berry factors to fact patterns that resemble plaintiffs’ allegations in

this case. Compare, e.g., Jensen, 689 F.2d at 1363 (finding no seizure),

with Elsoffer, 671 F.2d at 1297 (finding a seizure). Third, as

discussed, Berry mentioned several other factors that plaintiffs did

Edger, 84 F.4th at 1235 (alteration adopted) (quotation omitted). Thus, we do

not address those grounds for finding clearly established law.

17 Even concerning factors that carry “great weight,” Berry was not as

categorical as our language suggested. In Berry, we stated that “blocking an

individual’s path or otherwise intercepting him to prevent his progress in any

way is a consideration of great, and probably decisive, significance.” 670 F.2d

at 597. But when we considered the facts at hand, we declined to find that the

agents’ initial stop of the defendant was a “seizure” even though “the agents

stopped Berry’s progress toward a taxi stand,” because there was “no evidence

of coercion on the record.” Id. at 603. Thus, even this Berry factor—blocking

an individual’s path—cannot decisively tip the scales such that impeding a

passenger’s progress “clearly” is a seizure.

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23-13253 Opinion of the Court 27

not allege were present in this case. See Berry, 670 F.2d at 597

(listing “statements by officers that individuals are suspected of

smuggling drugs”; “[s]tatements which intimate that an

investigation has focused on a specific individual”; and “informing

an individual that an innocent person would cooperate with

police” as relevant factors). Absent those factors, the individual

defendants’ alleged conduct did not clearly violate Berry, either.

Accordingly, by pointing only to Berry, plaintiffs fail to show

that the law was clearly established: the unlawfulness of the

individual defendants’ “conduct does not follow immediately from

the conclusion that the [Berry] rule was firmly established.” Wesby,

583 U.S. at 64 (quotation omitted). Thus, the individual defendants

are entitled to qualified immunity.18 We affirm the district court’s

dismissal of plaintiffs’ unreasonable-seizure claims against the

individual defendants. See Ingram, 30 F.4th at 1250.

18 Sergeant Smith is entitled to qualified immunity for slightly different

reasons. Plaintiffs alleged their Fourth Amendment claims against Smith via

supervisory liability. Smith did not personally participate in the alleged stops.

A supervisor is entitled to qualified immunity if his alleged supervisory

conduct did not violate clearly established law. See Ingram, 30 F.4th at 1256;

see also Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018) (“[E]ach defendant is

entitled to an independent qualified-immunity analysis as it relates to his or

her actions and omissions.”). Plaintiffs do not point us to any clearly

established law that Smith allegedly violated by supervising the stops.

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28 Opinion of the Court 23-13253

2. Plaintiffs plausibly alleged Clayton County’s

liability under Monell for the unreasonable

seizures

We reach a different result, however, concerning Clayton

County’s liability for the seizures. The district court held that

“[e]ven if the Amended Complaint successfully alleged an

underlying constitutional violation, it fails to allege a custom or

policy supporting Monell liability” to hold Clayton County liable.

On appeal, plaintiffs argue that they plausibly alleged that the drug

interdiction program was “a policy, . . . or a widespread practice

that constitutes a custom” of Clayton County. Defendants

reiterate that no constitutional violations occurred, but even if

violations did occur, plaintiffs failed to plausibly allege an official

policy or custom by Clayton County. Plaintiffs respond that

defendants are “patently incorrect in light of the complaint’s

detailed allegations.” We agree with plaintiffs.

In Monell, the Supreme Court held that a plaintiff can sue a

municipal entity for damages under 42 U.S.C. § 1983 if the plaintiff

alleges that he suffered a constitutional violation stemming from

the entity’s official policy or custom. See 436 U.S. at 690–91. “To

prove a Monell claim, a plaintiff must show: (1) that his

constitutional rights were violated; (2) that the municipality had a

custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the policy or custom caused the

violation.” Teel v. Lozada, 99 F.4th 1273, 1279 (11th Cir. 2024)

(quotation omitted).

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23-13253 Opinion of the Court 29

The exoneration of an individual defendant does not, by

itself, exonerate the municipal entity under section 1983. See

Barnett v. MacArthur, 956 F.3d 1291, 1301 (11th Cir. 2020). We must

ask whether a judgment in favor of individual officers “can be

harmonized with a concomitant . . . decision imposing liability on

the municipal entity.” Id. at 1302 (quotation omitted). An

individual defendant’s successful qualified-immunity defense can

be harmonized with a municipal entity’s liability. Id. at 1302 n.8.

Here, because we have already found that plaintiffs plausibly

alleged that their Fourth Amendment rights were violated (the first

Monell element), we next consider whether plaintiffs plausibly

alleged the second and third elements of a Monell claim. See Teel,

99 F.4th at 1279. Beginning with the second Monell element, the

existence of a policy or custom, plaintiffs plausibly alleged that the

violations of their Fourth Amendment rights occurred while

defendants were executing Clayton County’s drug interdiction

program. Indeed, one defendant explicitly referred to his

questioning of André as “protocol.” And plaintiffs plausibly alleged

that defendants had executed hundreds of stops in the jet bridge

pursuant to the drug interdiction program. As for the third

element, whether the policy or custom caused the constitutional

violations, plaintiffs’ own alleged experiences, plus the alleged

experiences of other passengers who are not parties to this case,

plausibly demonstrate that these stops violate passengers’ Fourth

Amendment rights. In other words, plaintiffs have plausibly

alleged that the drug interdiction program itself calls for repeated

violations of the Fourth Amendment. Accordingly, plaintiffs have

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30 Opinion of the Court 23-13253

plausibly alleged a Monell claim for Fourth Amendment violations

against Clayton County. See Hoefling v. City of Miami, 811 F.3d 1271,

1280–81 (11th Cir. 2016) (concluding that the plaintiff plausibly

alleged a Monell claim where the plaintiff alleged (1) a violation of

his own constitutional rights, (2) that others had suffered the same

or similar constitutional violations, and (3) that the municipality

itself referred to these constitutional violations as part of a

“program”); see also Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520

U.S. 397, 404–05 (1997) (“Where a plaintiff claims that a particular

municipal action itself violates federal law, or directs an employee

to do so, resolving these issues of fault and causation is

straightforward.”). Because the district court concluded otherwise,

we reverse on this issue.

In opposition to this conclusion, defendants argue that

plaintiffs’ Monell claim fails because (1) plaintiffs failed to plausibly

allege any underlying Fourth Amendment violations and (2) the

drug interdiction program was not “adhered to with deliberate

indifference.” We reject defendants’ first argument because, as

discussed, we conclude that plaintiffs plausibly alleged

unreasonable seizures in violation of the Fourth Amendment. As

for defendants’ second argument, the deliberate-indifference

standard only applies “where the plaintiff claims that a

municipality’s facially valid actions violated his constitutional

rights.” McDowell v. Brown, 392 F.3d 1283, 1291 (11th Cir. 2004). In

that case, “a plaintiff must demonstrate that the lawful action was

taken with deliberate indifference as to its known or obvious

consequences.” Id. (quotation omitted). We do not consider

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23-13253 Opinion of the Court 31

deliberate indifference, however, where the plaintiff claims that the

municipality “directs an employee” to “violate[] federal law.” Id.

(quoting Brown, 520 U.S. at 404–05). And as discussed, plaintiffs

plausibly alleged that Clayton County’s drug interdiction program

directs the county’s officers to violate passengers’ Fourth

Amendment rights by conducting unreasonable seizures of the

passengers. 19 Accordingly, defendants’ argument about deliberate

indifference is meritless. See id. Thus, plaintiffs’ unreasonable-

seizure claims may proceed against Clayton County.

B. English plausibly alleged an unreasonable search

On appeal, plaintiffs also contend that the search of English’s

luggage20 was unlawful because he was seized unlawfully, and in

any event, English did not consent to his luggage being searched

by CCPD officers. Defendants respond that plaintiffs’ allegations

demonstrate that English consented to the search of his luggage.

Plaintiffs reply that English’s consent was coerced. We again agree

with plaintiffs.

As discussed, the Fourth Amendment protects “[t]he right of

the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const. amend.

19 The record does not contain any written descriptions of or guidelines for the

drug interdiction program such that we could determine that the program was

facially valid. Accordingly, we accept as true plaintiffs’ allegations in their

amended complaint that the program “rel[ies] on coercion.” See Moore, 109

F.4th at 1365.

20 André did not allege an unlawful search claim.

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32 Opinion of the Court 23-13253

IV. Typically, warrantless searches are unreasonable under the

Fourth Amendment. Fuqua v. Turner, 996 F.3d 1140, 1151 (11th Cir.

2021). But as relevant to this case, “[i]t is well-settled that one of

the specifically established exceptions to the requirements of both

a warrant and probable cause is a search that is conducted pursuant

to consent.” Id. Not all consent, however, invokes this exception.

The “consent must be the product of a free and voluntary choice.”

Id. “Whether an individual’s consent to a warrantless search was

given voluntarily is a question of fact that must be decided in light

of the totality of the circumstances.” Id. (quotation omitted). 21

Here, English alleged that during his unlawful seizure, he

“acquiesced” to the search of his luggage. Accordingly, we turn to

whether English’s consent to the search was voluntary. Delancy,

502 F.3d at 1308 (quotation omitted).

In considering English’s allegations that his consent to

search was coerced, we reach the same conclusion that we reached

in Chemaly because the facts of that case are similar to plaintiffs’

allegations. In Chemaly, we considered whether a passenger

21 Generally, if consent is given after an unlawful seizure, the government

must show—in addition to the voluntariness of the consent—that the

voluntary “consent was not a product of the illegal seizure.” United States v.

Delancy, 502 F.3d 1297, 1308 (11th Cir. 2007) (quotation omitted); see United

States v. Santa, 236 F.3d 662, 676 (11th Cir. 2000). But the “voluntariness of

consent is . . . a threshold requirement” to determining if that voluntary

consent “remove[d] the taint of an illegal seizure.” Delancy, 502 F.3d at 1308

(quotation omitted). As we will explain, we conclude at that threshold that

English’s consent was involuntary. Accordingly, we do not decide if his

consent removed the taint of his unlawful seizure.

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23-13253 Opinion of the Court 33

voluntarily consented to a search of his person and belongings

while on a jet bridge boarding a plane. 741 F.2d at 1348–49. The

passenger “was told to step aside so that the other passengers could

continue to board the plane, and he was removed from the flow of

traffic.” Id. at 1349. The officer requested the passenger’s ID and

ticket, then he retained those documents while he questioned the

passenger and asked to search the passenger’s luggage. Id. The

government argued that the passenger consented to this search. Id.

at 1352. We disagreed and reversed the conviction: “[b]ecause the

agent retained [the passenger’s] ticket and passport, removed him

from the other passengers for questioning, and did not inform him

of his right to refuse consent,” the passenger’s consent to search

was involuntary.22 Id. at 1353; see also United States v. Bacca-Beltran,

741 F.2d 1361, 1362–63 (11th Cir. 1984) (applying Chemaly as a

“companion case”).

22 We also listed several other “[r]elevant factors in determining voluntariness

[of the consent to search], none of which is dispositive”:

voluntariness of the defendant’s custodial status, the presence

of coercive police procedure, the extent and level of the

defendant’s cooperation with police, the defendant’s

awareness of his right to refuse to consent to the search, the

defendant’s education and intelligence, and, significantly, the

defendant’s belief that no incriminating evidence will be

found.

Chemaly, 741 F.2d at 1352 (quotation omitted). We also noted that the

aforementioned Berry factors “are also relevant in determining the

voluntariness of consent.” Id.

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34 Opinion of the Court 23-13253

English alleges a similar encounter, claiming that Campbell

and Griffin retained his ticket and ID while they questioned him on

the jet bridge. In so doing, the officers asked him to step out of the

flow of boarding passengers. And according to his allegations,

Campbell and Griffin did not inform him of his right to refuse

consent to a search; indeed, only after searching his bag did they

tell him that he was free to leave. Thus, English plausibly alleged

that his “consent to search was not voluntary.” Chemaly, 741 F.2d

at 1353; see also Bacca-Beltran, 741 F.2d at 1362–63. 23 Accordingly,

English plausibly alleged defendants’ search of his luggage violated

his Fourth Amendment rights. See Fuqua, 996 F.3d at 1151. As

before, we next consider which defendants may be liable for that

violation.

1. The individual defendants are again entitled to

qualified immunity for the unreasonable

search

The district court determined that the individual defendants

are entitled to qualified immunity on English’s unreasonable-

search claim. As we have explained, English can overcome

23 Defendants try to distinguish Chemaly and Bacca-Beltran by highlighting

other facts present in those cases but absent from English’s allegations, such

as comments from officers indicating the defendants in those cases had

become targets of investigations. We agree that there are factual differences

between English’s case and those cases, but those factual differences do not

render English’s allegations of involuntary consent implausible, and

plausibility is the relevant question at the motion to dismiss stage. See

Twombly, 550 U.S. at 570.

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23-13253 Opinion of the Court 35

qualified immunity if he can show that the individual defendants

“(1) committed a constitutional violation; and (2) that this violation

was clearly established in law at the time of the alleged

misconduct.” Edger, 84 F.4th at 1235 (quotation omitted). And a

plaintiff may show that the law is clearly established through one

of three ways: (1) “show[ing] that a materially similar case has

already been decided, whose facts are similar enough to give the

police notice”; (2) “show[ing] that a broader, clearly established

principle” derived from “general statements of the law contained

within the Constitution, statute, or caselaw” should “control the

novel facts of his case”; or (3) “show[ing] that the officer’s conduct

so obviously violates the [C]onstitution that prior case law is

unnecessary.” Id. (alteration adopted) (emphasis and quotations

omitted).

We have already concluded that English plausibly alleged

that Campbell and Griffin violated the Fourth Amendment when

they searched English’s bag. As for the clearly-established prong,

plaintiffs cursorily argue that “Chemaly and Bacca-Beltran clearly

establish that Mr. English’s consent [to search] was involuntary and

that the search was therefore illegal.” Because plaintiffs do not

specify whether they are trying to show clearly established law

through the first or second method for doing so, 24 we consider both

24 By relying on Chemaly and Bacca-Beltran, plaintiffs do not argue that the

individual defendants’ “conduct so obviously violate[d] the [C]onstitution that

prior case law is unnecessary.” Edger, 84 F.4th at 1235 (alteration adopted)

(quotation omitted). Thus, we do not address that ground for finding clearly

established law.

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36 Opinion of the Court 23-13253

methods. See id. Under either method, however, we are

unpersuaded that the governing law was sufficiently clear to deny

the individual defendants qualified immunity.

First, Chemaly and Bacca-Beltran are not “materially similar”

enough to English’s allegations to give Campbell and Griffin notice

of the unlawfulness of the search. Id. (quotation omitted). In

Chemaly, we emphasized that the officer—who had reason to

believe the defendant was trying to transport contraband out of the

country by plane—asked the defendant “specific and repetitive

questions” about that contraband. Chemaly, 741 F.2d at 1353; see id.

at 1348. 25 By asking such questions, the officer “intimate[d] that an

investigation had focused on a specific individual,” which “easily

could induce a reasonable person to believe that failure to

cooperate would lead only to formal detention.” Id. at 1353

(alterations adopted) (quotation omitted). In other words, the

officer “induce[d]” the defendant into consenting to a search in part

by indicating through his questioning that he suspected the

defendant of violating federal law and was about to arrest the

defendant. See id. English did not allege a materially similar level

of coercion-by-interrogation. English did not allege that Campbell

and Griffin accused him of smuggling drugs or suggest he was

25 When we decided Chemaly, federal law required anyone carrying more than

$5,000 out of the country to report the currency to the federal government.

See Chemaly, 741 F.2d at 1348; see also 31 U.S.C. § 5316 (the statute in its current

form). Before officers searched the defendant, they had received a tip that he

was about to carry $500,000 in unreported currency to another country. See

Chemaly, 741 F.2d at 1348.

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about to be arrested like the officers did in Chemaly; they merely

asked English whether he had any drugs on him. Campbell and

Griffin’s questions “indicated no more than an interrogation as part

of a more general inquiry into drug smuggling.” Jensen, 689 F.2d at

1363. 26

Second, Chemaly and Bacca-Beltran announce only case-

specific holdings; neither announce any clear rules from which “the

unlawfulness of the [individual defendants’] conduct . . . follow[s]

immediately.” Wesby, 583 U.S. at 64 (quotation omitted). After all,

determining whether consent was voluntary is a fact-specific

exercise. See Fuqua, 996 F.3d at 1151; cf. Stanley v. City of Dalton, 219

F.3d 1280, 1298 (11th Cir. 2000) (recognizing in the First

Amendment context that when a governing rule requires

“balancing” facts “on a case-by-case basis, our decisions tilt strongly

in favor of [qualified] immunity by recognizing that only in the

rarest of cases will reasonable government officials truly know”

that their actions “violated clearly established federal rights”

(quotation omitted)). And when conducting that exercise in

Chemaly, we listed several “factor[s]” that led us to conclude that

the defendant’s consent was involuntary, including several (such as

some of the Berry factors) that plaintiffs did not allege in this case.

741 F.2d at 1352–53; see also Bacca-Beltran, 741 F.2d at 1362 (noting

26 Although Jensen concerned whether a seizure had occurred rather than the

voluntariness of consent to a search, as discussed, Chemaly explained that

“factors involved in a seizure question,” such as the Berry factors, “are also

relevant in determining the voluntariness of consent.” Chemaly, 741 F.2d at

1352.

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38 Opinion of the Court 23-13253

that Chemaly was a “companion case” that “controlled” our

decision). Thus, these cases did not clearly establish the law

through “general statements of the law.” Edger, 84 F.4th at 1235

(quotation omitted).

In sum, English failed to plausibly allege facts demonstrating

that Campbell and Griffin should have been on notice that their

actions in searching his bag violated the Fourth Amendment. 27 See

Jensen, 689 F.2d at 1363. Thus, we affirm the dismissal of English’s

unreasonable-search claims against the individual defendants

because the officers are entitled to qualified immunity.28 See

Ingram, 30 F.4th at 1250.

2. English plausibly alleged Clayton County’s

liability under Monell for the unreasonable

search

We next turn to English’s unreasonable-search claim against

Clayton County. We have already concluded that English

plausibly alleged that his Fourth Amendment right to be free from

unreasonable searches was violated (the first Monell element).

27 As discussed, we find enough similarities between Chemaly, Bacca-Beltran,

and English’s allegations in this case to conclude that English plausibly alleged

a violation of his Fourth Amendment rights. But Chemaly and Bacca-Beltran

are not similar enough to English’s allegations for him to overcome qualified

immunity against the individual defendants in this case. See supra note 23.

28 Sergeant Smith is again entitled to qualified immunity for the reasons given

supra note 18.

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Thus, we consider whether plaintiffs plausibly alleged the second

and third elements of a Monell claim. See Teel, 99 F.4th at 1279.

As before, English plausibly alleged the second Monell

element, the existence of a policy or custom, by alleging that his

unreasonable search occurred when defendants were executing

Clayton County’s drug interdiction program, which defendants

had executed hundreds of times. And English plausibly alleged the

third Monell element, which is causation: English’s own alleged

experience being searched (along with English’s other alleged

examples of these searches) plausibly demonstrates that searches

conducted pursuant to the drug interdiction program violate

passengers’ Fourth Amendment rights. Accordingly, English has

plausibly alleged a Monell claim for an unreasonable search against

Clayton County. See Hoefling, 811 F.3d at 1280–81; Brown, 520 U.S.

at 404–05. Thus, we reverse the district court’s dismissal of this

claim.

C. Plaintiffs did not plausibly allege an equal-protection

violation

The district court held that plaintiffs failed to plausibly allege

that the drug interdiction program had a discriminatory effect or

purpose such that it violated the Equal Protection Clause of the

Fourteenth Amendment. On appeal, plaintiffs argue that they

plausibly alleged both (1) a discriminatory effect through statistical

disparities, and (2) that the drug interdiction program was

motivated by a discriminatory purpose as demonstrated by the

“stark” racial disparity which exists as to which passengers are

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40 Opinion of the Court 23-13253

stopped, and supervisors knew of the program’s racial disparities.

Defendants respond that plaintiffs’ statistics fail to show

discriminatory effect or purpose, and plaintiffs’ allegations about

discriminatory purpose are conclusory. Plaintiffs argue, in essence,

that the discriminatory effect of the program demonstrates

discriminatory purpose. In so doing, plaintiffs have failed to

plausibly allege that the defendants in this case acted with a

discriminatory purpose. 29

The Equal Protection Clause of the Fourteenth Amendment

provides that “[n]o state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1, cl. 4. This clause “prohibits selective enforcement of the

law based on considerations such as race.” Whren v. United States,

517 U.S. 806, 813 (1996). To sustain a claim under the Equal

Protection Clause, “[p]laintiffs must . . . show that the State’s

decision or act had a discriminatory purpose and effect.” 30 Greater

29 We recognize plaintiffs argue that Clayton County knew or should have

known that its airport interdiction practice was racially discriminatory

because, among other things, the County maintained logs that listed the

name, flight information, race, gender, and date of birth of each stopped

passenger, and non-party Jean Elie made a racial profiling complaint following

his encounter. But plaintiffs do not allege that the individual defendants knew

of any racially discriminatory complaint or saw the County’s logs or that the

County directed the individual defendants to single out black passengers for

interdictions. Accordingly, we must look to plaintiffs’ allegations about how

officers execute the program to glean effect and purpose.

30 If a plaintiff shows both a discriminatory purpose and effect, “the burden

shifts to the law’s defenders to demonstrate that the law would have been

enacted without this racial discrimination factor.” Greater Birmingham

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Birmingham Ministries v. Sec’y of State for the State of Ala., 992 F.3d

1299, 1321 (11th Cir. 2021) (quotation omitted). “If plaintiffs are

unable to establish both intent and effect, their constitutional

claims fail.” Id.

We first consider whether plaintiffs plausibly alleged that

defendants acted with a discriminatory purpose. We answer that

question in the negative. Accordingly, we do not reach whether

plaintiffs plausibly alleged discriminatory effect. See id.

The Supreme Court has explained that “official action will

not be held unconstitutional solely because it results in a racially

disproportionate impact.” Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 264–65 (1977). “Disproportionate impact

is not irrelevant, but it is not the sole touchstone of an invidious

racial discrimination forbidden by the Constitution.” Washington

v. Davis, 426 U.S. 229, 242 (1976). “Proof of racially discriminatory

intent or purpose is required to show a violation of the Equal

Protection Clause.” Arlington Heights, 429 U.S. at 265; see also Iqbal,

556 U.S. at 676 (“[T]he plaintiff must plead and prove that the

defendant acted with discriminatory purpose.”).

In support of their equal-protection claims, plaintiffs cite

their allegations of racial disparities in the execution of the drug

Ministries, 992 F.3d at 1321 (alteration adopted) (quotation omitted). The

district court did not reach this burden-shift, and the parties did not brief it on

appeal. Because we conclude that plaintiffs failed to plausibly allege

discriminatory purpose, we also do not reach the burden-shift. See id. at 1327–

28.

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42 Opinion of the Court 23-13253

interdiction program and that CCPD supervisors are aware of

those disparities, but such allegations fail to state an equal-

protection claim against the defendants in this case. Plaintiffs’

amended complaint is devoid of any allegations that any individual

defendant acted with a discriminatory purpose. Although plaintiffs

alleged that André did not see any other black passengers in his

boarding group when the individual defendants stopped him,

plaintiffs do not plausibly allege that any of the officers who

stopped English or André did so because English and André are

black. See Iqbal, 556 U.S. at 676. Plaintiffs’ allegations concerning

the general operation of the drug interdiction program do not

suffice: such allegations “shed[] no light on the intent of the

particular agent[s] in this particular case.” Xi v. Haugen, 68 F.4th

824, 840 (3d Cir. 2023). After all, the “sheer possibility” that each

individual defendant acted with a discriminatory purpose (here,

that they stopped plaintiffs because plaintiffs are black) based on

allegations that are “merely consistent” with such a purpose (here,

that plaintiffs were stopped and are black) does not suffice to state

a claim against those defendants. Iqbal, 556 U.S. at 678 (quotation

omitted). Accordingly, the district court properly dismissed

plaintiffs’ equal-protection claims against the individual

defendants. See id.; Greater Birmingham Ministries, 992 F.3d at 1321

(“If Plaintiffs are unable to establish both intent and effect, their

constitutional claims fail.”).

And without a constitutional violation by the individual

defendants, Clayton County also is not liable. Unlike plaintiffs’

Fourth Amendment claims, our judgment in favor of the individual

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defendants on plaintiffs’ equal-protection claims cannot be

“harmonized” with a decision that plaintiffs plausibly alleged

Clayton County violated the Equal Protection Clause. Barnett, 956

F.3d at 1302 (quotation omitted). Monell and its progeny do not

“authorize[] the award of damages against a municipal [entity]

based on the actions of one of its officers when in fact . . . the officer

inflicted no constitutional harm.” Teel, 99 F.4th at 1288 (quotation

omitted).

Here, plaintiffs’ equal-protection claims against Clayton

County arise out of plaintiffs’ allegations that officers stopped them

on the basis of their race because Clayton County had a policy

directing the officers to do so. Logically, if the individual

defendants did not stop plaintiffs because of their race, then

plaintiffs were not subjected to a policy of stopping black

passengers. Put another way, plaintiffs failed to plausibly allege the

first element of a Monell claim: they suffered “no constitutional

harm” for which Clayton County could be liable if officers did not

stop them because of their race. Id. (quotation omitted). And

because we have already concluded that plaintiffs have not

plausibly alleged that the individual defendants stopped them

because of their race, 31 we affirm dismissal of plaintiffs’ equal-

protection claims against Clayton County. See Rooney v. Watson,

31 This conclusion dooms plaintiffs’ claims under 42 U.S.C. § 1981, too:

Ҥ 1981, like the Equal Protection Clause, can be violated only by purposeful

discrimination.” Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375,

391 (1982). Accordingly, we affirm the district court’s dismissal of those

claims.

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44 Opinion of the Court 23-13253

101 F.3d 1378, 1381–82 (11th Cir. 1996) (“[O]ur finding that the

[plaintiffs] did not suffer any constitutional deprivation makes it

unnecessary to consider [the municipal entity’s] policy or

custom.”).

IV. Conclusion

For the foregoing reasons, we conclude that plaintiffs

plausibly alleged that defendants violated their Fourth Amendment

rights to be free from unreasonable searches and seizures. The

individual defendants are entitled to qualified immunity, but

Clayton County is not. Accordingly, we reverse the dismissal of

plaintiffs’ Fourth Amendment claims against Clayton County. We

affirm the dismissal of plaintiffs’ remaining claims.

AFFIRMED IN PART, REVERSED IN PART.