International Security LLC v. Dana Berry

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 24-2207

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INTERNATIONAL SECURITY, LLC

v.

DANA M. BERRY; S. BENJAMIN PARSONS,

Appellants

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On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1:20-cv-01514)

District Judge: Honorable Maryellen Noreika

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Argued October 21, 2025

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Before: HARDIMAN, KRAUSE, and FREEMAN, Circuit Judges

(Filed: November 7, 2025)

Nicholas D. Picollelli, Jr. [ARGUED]

Zachary S. Stirparo

Office of the Attorney General of Delaware

Delaware Department of Justice

820 N French Street

Carvel Office Building

Wilmington, DE 19801

Counsel for Appellants

James S. Green, Jr. [ARGUED]

Seitz, Van Ogtrop & Green

222 Delaware Avenue

Suite 1500, P.O. Box 68

Wilmington, DE 19801

Counsel for Appellee

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OPINION *

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KRAUSE, Circuit Judge.

Appellants Dana M. Berry and S. Benjamin Parsons appeal the District Court’s

implicit denial of qualified immunity for their roles in temporarily suspending the license

of Appellee International Security, LLC without offering a pre-deprivation hearing in

response to its violations of state law. When this case was previously before us at the

motion-to-dismiss stage, we concluded that qualified immunity was not appropriate and

vacated the District Court’s order dismissing the claims against Berry and Parsons. See

Int’l Sec., LLC v. Berry (Berry I), No. 21-2347, 2023 WL 3116433 (3d Cir. Apr. 27,

2023). But now, based on the undisputed facts developed through discovery, we can

define the right at issue with more specificity and hold that this right was not clearly

established when Berry and Parsons acted. We will therefore reverse.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

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I. DISCUSSION 1

The qualified immunity doctrine shields officials from civil liability so long as

their conduct “does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To resolve whether

Berry and Parsons are entitled to qualified immunity at the summary judgment stage, we

ask: (1) “whether the facts—taken in the light most favorable to the nonmoving party—

show that a government official violated a constitutional right,” and (2) “whether that

right was clearly established at the time of the official’s actions.” Santini v. Fuentes, 795

F.3d 410, 417 (3d Cir. 2015). We may address this two-prong inquiry in the order we

deem most appropriate. Id. at 418.

Here, we begin and end at the second prong. For a right to be “clearly

established,” the law must be “sufficiently clear that every reasonable official would

understand that what he is doing is unlawful.” District of Columbia v. Wesby, 583 U.S.

1

The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), and 1367(a).

We have jurisdiction to review the implicit denial of qualified immunity under the

collateral order doctrine. See Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017) (treating

the reservation of the question of qualified immunity as a denial sufficient to confer

appellate jurisdiction). Specifically, “we possess jurisdiction to review whether the set of

facts identified by the district court is sufficient to establish a violation of a clearly

established constitutional right,” but “we lack jurisdiction to consider whether the district

court correctly identified the set of facts that the summary judgment record is sufficient to

prove.” Ziccardi v. City of Philadelphia, 288 F.3d 57, 61 (3d Cir. 2002); see also

Williams v. City of York, 967 F.3d 252, 257 (3d Cir. 2020) (reviewing the record, when

faced with a summary order, “to determine what facts the district court, in the light most

favorable to the nonmoving party, likely assumed” (quoting Johnson v. Jones, 515 U.S.

304, 319 (1995))). Our standard of review is plenary. Eddy v. V.I. Water & Power Auth.,

256 F.3d 204, 208 (3d Cir. 2001).

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48, 63 (2018) (citation modified). Typically, that means there is “analogous precedent

from the Supreme Court or a consensus of persuasive authority in the Courts of Appeals”

giving the official “fair warning” that his conduct violates that right. Stringer v. County

of Bucks, 141 F.4th 76, 85 (3d Cir. 2025) (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)). Because the doctrine of qualified immunity shields a government official who

acted reasonably in the particular circumstances he faced, it is essential for us to frame

the right “in light of the specific context of the case,” Mack v. Yost, 63 F.4th 211, 228 (3d

Cir. 2023) (citation modified), which demands a “high degree of specificity,” Wesby, 583

U.S. at 63 (citation modified).

In Berry I, we relied on the allegations in the Complaint (as we are required to do

at the motion-to-dismiss stage) to frame the right at issue and concluded that the right—

defined in that context—was clearly established. As we have cautioned, however,

“whether the right allegedly violated was ‘clearly established’ [] presents unique

difficulties at the pleading stage,” because “it is often the case that, without more than the

complaint to go on, a court cannot fairly tell . . . the precise contours of the official’s

conduct and the context in which it occurred.” Stringer, 141 F.4th at 85-86 (citation

modified). That is why “the fact-intensive nature of qualified immunity makes it often a

bad fit” for the motion-to-dismiss stage, id. at 87 (citation omitted), and why a different

result may be warranted with the benefit of discovery at summary judgment.

Such is the case here. As it turns out, two of the allegations central to our framing

of the right at the motion-to-dismiss stage were contradicted by the evidence adduced in

discovery—specifically, that (1) the suspension of International Security’s license was

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issued solely because of a former employee’s over-the-phone tip, and (2) that Berry’s

investigation did not occur until after the suspension was issued. See Berry I, 2023 WL

3116433, at *1, *3; JA829-30.

Discovery revealed that, on March 5, 2020, Berry, a supervisor in the Professional

Licensing Section of the Delaware State Police (PLS), was contacted by a former

employee of International Security who stated that his former employer was using

unlicensed guards and failing to report all client locations, in violation of multiple state

laws. After receiving that call, Berry first reviewed International Security’s PLS file and

discovered that it had a history of such violations and was caught using unlicensed guards

in 2013, 2016, and 2018. Berry had assumed her role in the PLS in 2018, and she was

unaware of International Security’s history of using of unlicensed guards until prompted

by the March 5 phone call to review the file. After learning of International Security’s

history, Berry called Alfred Izquierdo, International Security’s president and sole

executive, to ask whether International Security was indeed employing unlicensed

security guards. The call did not yield a definitive answer and, instead, ended with

Izquierdo telling Berry to put her questions in writing so that he could consult an

attorney.

That same day, Berry and another officer further investigated the allegation by

visiting a location where International Security employed guards. At about 3:00 p.m.,

Berry arrived at Social Finance, Inc. (SoFi) in Claymont, Delaware, where she

determined that both the uniformed guard on duty and the guard slated to replace him

were not licensed and had not been identified to the PLS on the personnel roster that

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International Security was required to file. Having validated International Security’s use

of unlicensed and unreported guards at SoFi in violation of state law, Berry

recommended to Parsons (the Director of the PLS) that he issue an emergency suspension

of International Security’s license. 2

Parsons approved an emergency suspension letter that was sent to Izquierdo,

which instructed International Security to “cease and desist all services in the State of

Delaware until such time that [its] license may be re-instated” and advised Izquierdo of

International Security’s “right to a hearing” before the Delaware Board of Examiners of

Private Investigators and Private Security Agencies (the Board) “if [he made] a timely

request.” JA625; see 24 Del. C. § 1308(a) (authorizing the Director of the PLS to issue

an emergency suspension without a pre-deprivation hearing when a situation requires

“immediate action to protect the health and safety of the public”). 3

In view of these undisputed facts entered into the record since the prior appeal, we

can now define the right with greater specificity. See Mack, 63 F.4th at 228, 231. In this

context, the question is whether it would be clear to every reasonable officer that it

violated due process to temporarily suspend a private security agency’s business license,

2

After recommending to Parsons that International Security’s license be suspended and

departing SoFi, Berry continued the investigation that day and visited Luther Towers, an

apartment complex in Wilmington, Delaware. Notwithstanding International Security’s

failure to report this location to the PLS, Berry confirmed that there was an unlicensed

International Security guard on duty who was ineligible for licensure because of his

criminal record.

3

A week after Parsons issued the emergency suspension, International Security requested

a hearing before the Board under 24 Del. C. § 1308(a), but the parties settled the matter

before the hearing was set. International Security contends that it lost contracts with

some of its clients as a result of the suspension.

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pending a post-deprivation hearing, after the officer obtained proof that the agency

violated multiple licensing and reporting requirements related to public safety.

International Security argues that its right to a pre-deprivation hearing under these

circumstances was clearly established in Elsmere Park Club, L.P. v. Town of Elsmere,

542 F.3d 412 (3d Cir. 2008), a case on which we relied in Berry I. But when we decided

Berry I, we necessarily described the right at issue at a high-level of generality based only

on the allegations in the Complaint; 4 having now defined the right at the requisite

higher-level of specificity, we cannot say that Elsmere gave Berry and Parsons “fair

warning” that their conduct was unlawful. Stringer, 141 F.4th at 85 (quoting Hope, 536

U.S. at 741).

In Elsmere, we upheld the emergency action of local government officials who—

without offering a pre-deprivation hearing—condemned an apartment complex and

ordered that the property owner vacate residents because of the presence of “mold, water

leaks, and raw sewage, amounting to various violations” of the municipal code and

“pos[ing] a substantial and immediate threat to the health and welfare” of the residents.

542 F.3d at 415, 419. We were “reluctant to second guess the decision to act on an

4

In reserving the question of qualified immunity, the District Court understandably

adhered to our articulation of the clearly established right based on the allegations in the

Complaint at the motion-to-dismiss stage in Berry I and the import of Elsmere. As

explained, however, the undisputed facts in the record now allow us to define the right

based on the specific context facing Berry and Parsons when they acted. See Mack v.

Yost, 63 F.4th 211, 228, 231 (3d Cir. 2023); District of Columbia v. Wesby, 583 U.S. 48,

63-64 (2018).

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urgent basis” in a situation that “could have serious health consequences” for the public.

Id. at 420.

Instead, we adopted a rule recognizing an appropriate level of deference owed to

state officials facing such situations: Where there is “competent evidence allowing the

official to reasonably believe that an emergency does in fact exist . . . [,] the discretionary

invocation of an emergency procedure results in a constitutional violation only where

such invocation is arbitrary or amounts to an abuse of discretion.” Id. at 418 (alteration

in original) (quotation omitted). As a result, we held that the officials acted reasonably

(even if not perfectly) under the circumstances and the post-deprivation process available

to the property owner under the municipal code “was all that was required” under the

Due Process Clause. Id. at 414; see id. at 420 (cautioning that “perfection or near

perfection is not the standard”).

International Security asks us to read Elsmere as clearly establishing that “officers

cannot use their discretionary authority to arbitrarily invoke an emergency to suspend a

license without requisite due process.” Answering Br. 28. We reject that framing for a

few reasons: To start, International Security’s articulation of the right is at much too

“high [a] level of generality,” Wesby, 583 U.S. at 63, and is unhelpfully “abstract” for

Berry and Parsons to have known of the unlawfulness of their conduct when they acted,

Anderson v. Creighton, 483 U.S. 635, 639 (1987). What is more, it conflates the

sufficiency of the facts of Elsmere with those that are necessary to satisfy due process in

an emergency. And even assuming International Security’s framing, it does not seem

obvious or settled that a reasonable officer who has temporarily suspended a private

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security agency’s business license in response to the circumstances faced by Berry and

Parsons here has acted arbitrarily or abused his discretion.

Other than Elsmere, International Security has not pointed to (and we have not

found) other cases—let alone a “robust consensus,” Mack, 63 F.4th at 233—any closer to

the undisputed facts and circumstances confronting Berry and Parsons on March 5, 2020.

Because the constitutional right Berry and Parsons are alleged to have violated

was not clearly established when they acted, they are entitled to qualified immunity.

II. CONCLUSION

For the foregoing reasons, we will reverse the District Court’s order reserving

judgment on the question of qualified immunity as to International Security’s procedural

due process claim.

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