Carol Walker v. Brian Coffey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 17-2172

________________

CAROL LEE WALKER,

Appellant

v.

SENIOR DEPUTY BRIAN T. COFFEY, in his

individual capacity; SPECIAL AGENT PAUL ZIMMERER,

in his individual capacity

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D. C. Civil Action No. 2-17-cv-00040)

District Judge: Honorable Mark A. Kearney

________________

Argued on January 8, 2018

Before: JORDAN, ROTH, Circuit Judges and

STEARNS ∗, District Judge

(Opinion filed: September 20, 2018)

Geoffrey R. Johnson, Esq. (ARGUED)

1110 Wellington Road

Jenkintown, PA 19046

Counsel for Appellant

John G. Knorr, III, Esq. (ARGUED)

J. Bart DeLone, Esq.

Office of Attorney General of Pennsylvania

Strawberry Square

15th Floor

Harrisburg, PA 17120

Counsel for Appellees

________________

OPINION

________________

ROTH, Circuit Judge

∗

The Honorable Richard G. Stearns, District Judge of the

Massachusetts District Court, sitting by designation

2

Appellant Carol Lee Walker commenced this action

under 42 U.S.C. § 1983. She alleges that Appellees—a

prosecutor and a special agent employed by the Pennsylvania

Office of the Attorney General (OAG)—violated her Fourth

Amendment right to be free from an unreasonable search

when they used an invalid subpoena to induce Walker’s

employer, Pennsylvania State University (Penn State), to

produce her work emails. The District Court granted

Appellees’ motion to dismiss, concluding that they were

entitled to qualified immunity because Walker did not have a

clearly established right to privacy in the content of her work

emails. For the reasons stated below, we will affirm the

dismissal of Walker’s § 1983 claim. We will vacate the

District Court’s denial of Walker’s subsequent motion for

leave to file a second amended complaint, asserting claims

under the Stored Communications Act (SCA), 1 and remand

for further proceedings consistent with this opinion.

I.

This case stems from a criminal prosecution brought

against Walker by the OAG. In July 2015, the OAG filed

criminal charges against Walker in state court, which

included numerous counts of forgery and various computer

crime offenses. These charges were joined with prior charges

that had been filed against Walker’s husband, Ray Allen

Walker, Jr., and his trucking company. Appellee Brian

Coffey, a senior deputy attorney general, was the prosecutor

assigned to the case, and Appellee Paul Zimmerer, an OAG

1

18 U.S.C. § 2701 et seq. Throughout her filings, Walker

sometimes erroneously refers to the SCA as the “Secured”

Communications Act.

3

special agent, served as the lead investigator. Following a

preliminary hearing in August 2015, some of the charges

against Walker were dismissed, but four counts of conspiracy

to commit forgery remained pending.

In October 2015, before her trial had been scheduled,

Coffey and Zimmerer sought to obtain Walker’s work emails

from her employer, Penn State, as part of their investigation.

Coffey and Zimmerer initially asked Penn State to produce

Walker’s work emails voluntarily, but Penn State officials

requested formal documentation, saying, “We just need

something formal, a subpoena.” 2 Coffey and Zimmerer then

obtained a blank subpoena form from the Centre County

Court of Common Pleas, which they filled out in part. The

subpoena includes the case caption, is addressed to “John

Corro, PSU General Counsel & Senior Security / Systems

Analyst,” and requests production of “any & all

emails/computer files/documents/attachments to or from

Carol Lee Walker at her email address, to or from the

following email addresses: . . ..” 3 The seven listed email

addresses appear to belong to either Walker’s husband or his

business. The subpoena is blank as to the date, time, and

place of production and the party on behalf of whom

testimony is required. As such, Appellees concede that the

subpoena was, on its face, incomplete and unenforceable. On

October 21, 2015, Zimmerer presented the unenforceable

subpoena to Katherine Allen, Assistant General Counsel at

Penn State. Under Allen’s direction, Penn State employees

searched for the requested emails and turned them over to

Zimmerer. At some point after Penn State produced the

2

App. at 150-51.

3

App. at 49.

4

emails, the remaining criminal charges against Walker were

dismissed with prejudice, nolle prosequi.

Walker then filed this § 1983 action against Zimmerer

and Coffey, alleging that their use of an invalid subpoena to

obtain Walker’s work emails violated her right to be free

from unreasonable search under the Fourth Amendment of

the U.S. Constitution. 4 Zimmerer and Coffey both moved to

dismiss, arguing, in part, that they were entitled to qualified

immunity because Walker did not have a reasonable

expectation of privacy in her work emails or, if she did, that

right was not clearly established.

The District Court granted the motion to dismiss,

agreeing that Zimmerer and Coffey were entitled to qualified

immunity. The court concluded that Walker could not show a

clearly established right to privacy in the content of her work

emails. 5 Following the dismissal of her case, Walker filed a

motion for reconsideration of the District Court’s ruling and

for leave to file a second amended complaint. Walker’s

proposed second amended complaint was filed as an

attachment to her motion. The proposed complaint included a

new claim for violation of the SCA and pleaded additional

4

Walker’s complaint also alleged a violation of Article I,

section 8 of the Pennsylvania Constitution. The District

Court dismissed this claim on the grounds that Pennsylvania

law does not provide a private right of action allowing

plaintiffs to seek money damages for violations of the

Pennsylvania Constitution. App. at 20. Walker does not

challenge that ruling on appeal.

5

Walker v. Coffey, No. 17-40, 2017 WL 1477144, at *6-*9

(E.D. Pa. Apr. 24, 2017).

5

facts regarding Penn State’s role as both Walker’s employer

and Walker’s internet service provider (ISP), the measures

Walker took to protect the privacy of her work email account,

and the Penn State internet privacy policy applicable at the

time of the search. In a short memorandum order, the District

Court denied Walker’s motion. Ignoring the SCA claim, the

court simply concluded that, even if it were to allow Walker

to file her proposed second amended complaint, the additional

factual allegations therein would not alter the court’s prior

conclusion that the Defendants were entitled to qualified

immunity.

Walker now appeals both the District Court’s dismissal

of her complaint on qualified immunity grounds and the

District Court’s denial of her motion for reconsideration and

leave to file a second amended complaint.

II.

The District Court exercised subject matter jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1343. We have appellate

jurisdiction over the District Court’s final orders pursuant to

28 U.S.C. § 1291.

“We review a motion to dismiss based on the defense

of qualified immunity de novo as it involves a pure question

of law.” 6 We review a district court’s denial of a motion for

6

McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir. 2001).

6

reconsideration and denial of leave to amend for abuse of

discretion. 7

III.

A.

“Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory

or constitutional right that was clearly established at the time

of the challenged conduct.” 8 Qualified immunity is a strong

shield and protects “all but the plainly incompetent or those

who knowingly violate the law.” 9 “To resolve a claim of

qualified immunity, courts engage in a two-pronged inquiry:

(1) whether the plaintiff sufficiently alleged the violation of a

constitutional right, and (2) whether the right was ‘clearly

established’ at the time of the official’s conduct.” 10 A court

may address either of these questions first, “in light of the

circumstances in the particular case at hand,” 11 and the

Supreme Court has “repeatedly . . . stressed the importance of

7

Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259

(3d Cir. 2014); Caver v. City of Trenton, 420 F.3d 243, 258

(3d Cir. 2005).

8

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (internal

quotation marks omitted).

9

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal

quotation marks omitted).

10

L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir.

2016).

11

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

7

resolving qualified immunity questions at the earliest possible

stage in litigation.” 12

When considering whether a right is clearly

established for purposes of qualified immunity, a court must,

as a threshold matter, identify the scope of the right at issue.

The Supreme Court has emphasized that, for purposes of this

inquiry, a court must define or identify the right at a

particularized level. 13 “A Government official’s conduct

violates clearly established law when, at the time of the

challenged conduct, ‘[t]he contours of [a] right [are]

sufficiently clear’ that every ‘reasonable official would have

understood that what he is doing violates that right.’” 14

Although the Supreme Court “do[es] not require a case

directly on point, . . . existing precedent must have placed the

statutory or constitutional question beyond debate.” 15 A

plaintiff must identify either “controlling authority in the[]

jurisdiction” or a “consensus of cases of persuasive

authority.” 16

B.

Consistent with the Supreme Court’s precedent, we

begin our analysis by identifying the constitutional right at

12

Id. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991) (per curiam)).

13

See, e.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987).

14

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting

Anderson, 483 U.S. at 640).

15

Id.

16

Wilson v. Layne, 526 U.S. 603, 617 (1999).

8

issue, as “particularized to the facts of the case.” 17 Thus, for

purposes of qualified immunity, we must consider, at a

minimum, whether it is clearly established that the Fourth

Amendment affords an employee, such as Walker, the right to

have the contents of her work emails remain free from a law

enforcement search, absent a warrant or valid exception to the

warrant requirement. Because we conclude that such a right

is not clearly established—especially where, as here, the

employer ultimately produces the emails to law

enforcement—we hold that Appellees are entitled to qualified

immunity.

1.

“The touchstone of Fourth Amendment analysis is

whether a person has a ‘constitutionally protected reasonable

expectation of privacy.’” 18 Courts answer this question

through a two-part test, examining both subjective and

objective expectations of privacy. First, a court considers

whether an individual has “manifested a subjective

expectation of privacy in the object of the challenged

search.” 19 Second, a court considers whether “society [is]

willing to recognize that expectation as reasonable.” 20

17

White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam).

18

California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting

Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,

concurring)).

19

Id.

20

Id.; see also United States v. Jacobsen, 466 U.S. 109, 113

(1984) (noting that a “search,” for Fourth Amendment

purposes, “occurs when an expectation of privacy that society

is prepared to consider reasonable is infringed”).

9

Throughout this litigation, Walker’s subjective expectation of

privacy in her work emails has not been contested. Thus, our

analysis focuses on whether Walker enjoyed an objectively

reasonable expectation of privacy in the content of her work

emails.

When conducting such analysis, the Supreme Court

has historically expressed sensitivity to advances in

technology, 21 though in recent years the Court has also

exercised caution in this area. 22 In addition, although the

Fourth Amendment “protects people not places,” 23 the

caselaw consistently recognizes that objective expectations of

privacy in the workplace are distinct from those in other

contexts. 24 In analyzing Walker’s claim, we are therefore

mindful of this delicate balance.

The Supreme Court’s early decisions addressing the

Fourth Amendment’s application to telephone calls provide

our initial foundation. In United States v. Katz, the Court first

21

See, e.g., Katz, 389 U.S. at 352 (holding that failure to

recognize a reasonable expectation of privacy in a telephone

booth would “ignore the vital role that the public telephone

has come to play in private communication”).

22

See City of Ontario v. Quon, 560 U.S. 746, 759 (2010)

(“The Court must proceed with care when considering the

whole concept of privacy expectations in communications

made on electronic equipment . . .. The judiciary risks error

by elaborating too fully on the Fourth Amendment

implications of emerging technology before its role in society

has become clear.”).

23

Katz, 389 U.S. at 351.

24

See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369 (1968).

10

recognized a reasonable expectation of privacy in the content

of a telephone call made from a public phone booth. 25 The

Court concluded that the government’s use of an electronic

listening device to record the call constituted a search that,

absent a warrant or valid exception to the warrant

requirement, violated the Fourth Amendment. 26 Next, in

Smith v. Maryland, the Court addressed the government’s use

of a pen register to record the number dialed from an

individual’s home telephone. 27 After reaffirming Katz’s

holding that the content of a phone call is protected by the

Fourth Amendment, the Court concluded that telephone users

do not have a legitimate expectation of privacy in the

numbers that they dial. 28 Whereas the holding of Katz

reflected widely-held expectations that the words spoken into

the mouthpiece of a phone will remain private, the Smith

Court reasoned that no such expectation existed for the

numbers a user dials, because the numbers, unlike the content

of the calls, are voluntarily turned over to the phone

company. 29

The core holding of Smith rested upon the established

rule that “a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties.” 30 This

principle—the third-party doctrine—has arisen in a variety of

contexts. With regard to communications, the third-party

doctrine often dictates distinct treatment for the content of

25

Katz, 389 U.S. at 351-52.

26

Id.

27

Smith, 442 U.S. at 737.

28

Id. at 743.

29

Id. at 742-44.

30

Id. at 743-44.

11

communications as opposed to surface-level identifying

information or metadata. Notably, the rules established for

telephone calls in Katz and Smith align with prior and

subsequent Supreme Court caselaw applying the Fourth

Amendment to physical mail: Senders enjoy a reasonable

expectation of privacy in the content of their letters and

packages, but not in information readily discernable from the

surface of a mailed item, such as the address. 31

Content, however, is not categorically protected;

content that is turned over to a third party is not subject to a

reasonable expectation of privacy. Smith drew upon the

Court’s prior decision in United States v. Miller, which

addressed an account holder’s reasonable expectation of

privacy in checks and bank records. 32 The Miller Court

concluded that because the documents “contain[ed] only

information voluntarily conveyed to the banks and exposed to

their employees in the ordinary course of business,” the

account holder had “no legitimate ‘expectation of privacy’ in

their contents.” 33

31

See, e.g., Jacobsen, 466 U.S. at 114 (“Letters and other

sealed packages are in the general class of effects in which

the public at large has a legitimate expectation of privacy;

warrantless searches of such effects are presumptively

unreasonable.”); Ex Parte Jackson, 96 U.S. 727, 733 (1877)

(“Letters and sealed packages . . . in the mail are as fully

guarded from examination and inspection, except as to their

outward form and weight, as if they were retained by the

parties forwarding them in their own domiciles.”).

32

United States v. Miller, 425 U.S. 435, 438-39 (1976).

33

Id. at 442.

12

As technology has advanced, courts have grappled

with defining objective expectations of privacy in the content

of electronic communications. And those expectations can be

even harder to define in the workplace context. City of

Ontario v. Quon posed the question whether a police officer

enjoyed a reasonable expectation of privacy in the content of

text messages sent from his City-issued pager. 34 The

Supreme Court declined to resolve the question definitively.

Instead, after noting the risk of “elaborating too fully on the

Fourth Amendment implications of emerging technology

before its role in society has become clear,” 35 the Court

assumed arguendo that “Quon had a reasonable expectation

of privacy in the text messages sent on the pager provided to

him by the City” and that a search had occurred for purposes

of the Fourth Amendment. 36 The Court nevertheless

concluded that the search was reasonable because, pursuant to

an established Fourth Amendment exception, it was

conducted by Quon’s employer for a legitimate work-related

purpose. 37

Only months after Quon was decided, the Eleventh

Circuit, in Rehberg v. Paulk, 38 confronted a set of facts

similar to those of our present case. The defendants in that

case—a state prosecutor and law enforcement investigator—

had been investigating Rehberg and issued an allegedly

defective subpoena to Rehberg’s ISP in order to obtain emails

34

560 U.S. 746, 750 (2010).

35

Id. at 759.

36

Id. at 760.

37

Id. at 764-65.

38

611 F.3d 828 (11th Cir. 2010).

13

sent and received from Rehberg’s personal computer. 39

Rehberg later filed a § 1983 action alleging, among other

claims, that the subpoena violated his Fourth Amendment

rights. After noting the paucity of caselaw addressing Fourth

Amendment protection of email content and the “marked lack

of clarity in what privacy expectations as to content of

electronic communications are reasonable,” 40 the Eleventh

Circuit, relying on Quon, concluded that the case presented

“‘far-reaching’ legal issues that [the court] should be cautious

about resolving too broadly.” 41 Rather than attempting to

resolve those issues, the Eleventh Circuit simply concluded

that a right to privacy in the content of email communications

was not clearly established. 42 Notably, the Eleventh Circuit

acknowledged the apparent relevance of the Supreme Court’s

precedents governing telephone communications, but found

those cases were not dispositive. As the court explained,

“The Supreme Court’s decisions in Katz and Smith clearly

established an objectively reasonable privacy right in

telephone conversation content, but, as the modern Internet

did not exist at the time of those decisions, whether the

analytical framework, much less the rationale, of those

decisions transfers to privacy rights in Internet email is

questionable and far from clearly established.” 43

Several months later, the Sixth Circuit took a different

approach in United States v. Warshak. 44 In Warshak, law

39

Id. at 835.

40

Id. at 843-44.

41

Id. at 846.

42

Id. at 847.

43

Id.

44

631 F.3d 266 (6th Cir. 2010).

14

enforcement agents, relying on section 2703(b) of the SCA, 45

had obtained a subpoena compelling Warshak’s ISP to

produce the contents of approximately 27,000 emails sent or

received from Warshak’s account. Warshak moved to

suppress, arguing that the government’s warrantless search

and seizure of his emails violated his Fourth Amendment

rights. 46 After reviewing the case law discussed above, the

Sixth Circuit concluded that, “[g]iven the fundamental

similarities between email and traditional forms of

communication, it would defy common sense to afford emails

lesser Fourth Amendment protection.” 47 The court found that

an ISP is “the functional equivalent of a post office or

telephone company,” and, as a result, “the government cannot

compel a commercial ISP to turn over the contents of email

without triggering the Fourth Amendment.” 48 Addressing the

potential applicability of the third-party doctrine, the Sixth

Circuit, drawing on Katz and Smith, held that the “mere

ability” of an ISP to access the content of emails is not

“sufficient to extinguish a reasonable expectation of

privacy.” 49 The Sixth Circuit distinguished Miller on the

grounds that Warshak’s ISP, unlike the bank in Miller, was an

intermediary rather than the intended recipient of the material

in question.

Walker argues, in short, that Warshak should carry the

day. She characterizes the Sixth Circuit’s decision as a

straightforward and modest application of the Supreme

45

18 U.S.C. § 2703(b).

46

Warshak, 631 F.3d at 282.

47

Id. at 285-86.

48

Id. at 286.

49

Id. at 286-87.

15

Court’s precedents on mail and telephone communications to

the field of electronic communications. But Walker has

failed to identify, nor can we, a “robust consensus of cases of

persuasive authority” 50 supporting the position she advances.

To the contrary, at present Warshak remains closer to a lonely

outlier than to a representation of consensus. Although

Warshak arguably tracks a longstanding distinction in Fourth

Amendment law between content and metadata, that

distinction is not dispositive, as content is not uniformly

protected. 51 As Quon and Rehberg recognized, electronic

communications present new considerations, and perhaps

distinguishing features, that may counsel caution rather than a

rote application of older precedents addressing other forms of

communication. Moreover, the Fourth Amendment issues in

Warshak arose in the context of suppression of evidence.

Thus, the Sixth Circuit did not face the question that we must

answer: whether the particular Fourth Amendment right was

clearly established.

As such, we would be hard put to find that Walker

enjoyed a clearly established right to privacy in the content of

her work emails. But because this case involves Walker’s

work emails, which were produced to law enforcement by her

employer, Penn State, our inquiry does not end there. As

explained below, those facts remove any doubt that Walker

has failed to allege a violation of a clearly established

constitutional right.

2.

50

L.R. v. Sch. Dist. of Phila., 836 F.3d at 248 (internal

quotation marks omitted).

51

See, e.g., Miller, 425 U.S. at 442.

16

Most of the cases discussed above address the

reasonable expectation of privacy in personal

communications. Here, it is undisputed that the

communications in question were sent or received from

Walker’s work email account. And although the Fourth

Amendment affords employees a reasonable expectation of

privacy in the content of certain work-related

communications and files, an employee’s Fourth Amendment

rights in the workplace are subject to additional exceptions

and limitations.

The Supreme Court has recognized that employees

may be entitled to a reasonable expectation of privacy in the

contents of documents stored in the workplace, both in the

private 52 and public 53 sectors. At the same time, public

employers remain free to conduct a warrantless search of an

employee’s files or communications if the search is

“conducted for a ‘noninvestigatory, work-related purpos[e]’

or for the ‘investigatio[n] of work-related misconduct.’” 54

This rule is consistent with the nature of an employer-

employee relationship and reflects an understanding that,

although employees may have certain privacy interests in

their work-related documents and communications vis-à-vis

outsiders, their privacy interests vis-à-vis their employer are

far more circumscribed.

52

Mancusi v. DeForte, 392 U.S. 364, 368-70 (1968).

53

O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (extending

the holding of Mancusi to public sector employees).

54

Quon, 560 U.S. at 761 (quoting O’Connor, 480 U.S. at

725-26).

17

In a similar vein, courts have long recognized that

employers, as third parties who possess common authority

over the workplace, may independently consent to a search of

an employee’s workplace documents or communications. 55

This rule is a logical application, in the workplace context, of

general principles governing third-party consent. An

individual or entity exercising common authority over the

place or thing to be searched may independently consent to a

search. 56

More recently, the Ninth Circuit addressed the

application of this principle to modern workplace technology.

United States v. Ziegler 57 involved an investigation into an

employee who, law enforcement believed, had been accessing

child pornography on his work computer. Following several

conversations with an FBI agent, employees from the

company’s IT department made a copy of the suspect-

employee’s hard drive and produced it to the FBI. After

finding, pursuant to Mancusi and O’Connor, that the suspect-

employee enjoyed a reasonable expectation of privacy in the

55

See, e.g., Mancusi, 392 U.S. at 369 (holding that an

employee could reasonably have expected that documents

stored in a shared office “would not be touched except with

the[] permission [of co-occupants of the office] or that of

[workplace supervisors]”).

56

See, e.g., United States v. Matlock, 415 U.S. 164, 171

(1974) (holding that the government “may show that

permission to search was obtained from a third party who

possessed common authority over or other sufficient

relationship to the premises or effects sought to be

inspected”).

57

474 F.3d 1184 (9th Cir. 2007).

18

contents of his work computer, the Ninth Circuit nevertheless

concluded that the search of the computer was permissible

because the FBI had obtained consent from the employer,

who exercised common authority over the workplace

computer at issue. 58

We reach the same conclusion here. There is no

dispute that the emails in question were sent or received via

Walker’s work email address, as part of an email system

controlled and operated by Penn State. Thus, for purposes of

the Fourth Amendment, the emails were subject to the

common authority of Walker’s employer. Walker did not

enjoy any reasonable expectation of privacy vis-à-vis Penn

State, and Penn State could independently consent to a search

of Walker’s work emails. Upon receipt of the subpoena,

Penn State exercised its independent authority to consent to a

search and produced Walker’s work emails. 59

Walker argues that we should find Penn State’s

consent invalid because it was procured through fraud or

coercion, via the invalid subpoena. She notes that a law

enforcement officer cannot evade the limitations of the Fourth

Amendment by inducing private parties to do what they

cannot. With that proposition, we agree. But Walker fails to

recognize that Penn State was not merely a private party

induced to perform a search; rather, it was a third party with

common authority over Walker’s emails and the independent

ability to consent to a search. As alleged in Walker’s

58

Id. at 1190-91.

59

In holding that Penn State had joint control over Walker’s

work emails, we need not address the government’s argument

that the third party doctrine applies.

19

complaint, Appellees presented the subpoena to Penn State’s

Assistant General Counsel. 60 Rather than contest the validity

of the subpoena or otherwise limit any search, the Assistant

General Counsel instructed an employee in her office to assist

with the production of Walker’s emails. 61 That decision was

within the authority of Penn State—acting through its

attorney—as Walker’s employer. Under these circumstances,

despite the facial invalidity of the subpoena, we decline to

find that the university’s consent was coerced. 62

We emphasize that nothing in this opinion should be

taken as condoning the actions of Appellees in this case. On

the contrary we are dismayed by their reliance on an invalid

subpoena to procure the documents that they sought. And we

add a note of caution that, under slightly difference

circumstances, similar actions might well lead us to a

conclusion opposite from the one we reach today. But

improper conduct alone does not result in a forfeiture of

qualified immunity. 63 Rather, the relevant question is

whether, under the particular circumstances of this case,

Appellees’ conduct violated Walker’s clearly established

60

App. at 39.

61

App. at 39.

62

Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)

(“[T]he question whether a consent to a search was in fact

‘voluntary’ or was the product of duress or coercion, express

or implied, is a question of fact to be determined from the

totality of all the circumstances.”).

63

See Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials

sued for constitutional violations do not lose their qualified

immunity merely because their conduct violates some

statutory or administrative provision.”).

20

constitutional rights. Because we conclude that it did not,

Appellees are entitled to qualified immunity. We will

therefore affirm the District Court’s dismissal of Walker’s §

1983 claim.

C.

Walker also appeals the denial of her subsequent

motion for reconsideration and for leave to file a second

amended complaint. Attached to Walker’s motion was a

proposed second amended complaint, which included a new

claim alleging violation of the SCA. 64 The District Court

denied Walker’s motion in a brief memorandum order that

focused solely on reconsideration of Walker’s § 1983 claim

and made no mention of Walker’s attempt to assert a new

claim under the SCA. 65

For the reasons stated at length above, we agree that

Appellees are entitled to qualified immunity as to Walker’s §

1983 claim, and the District Court therefore did not err in

denying reconsideration. At present, however, we have

insufficient information to determine whether Walker could

plead a valid claim under the SCA. We therefore conclude

that, as to Walker’s attempt to assert a new claim under the

SCA, the District Court abused its discretion by denying out

of hand Walker’s motion for leave to file a second amended

complaint. We will therefore vacate in part the District

64

App. at 105.

65

App. at 28-30.

21

Court’s order of May 17, 2017, and remand this matter to the

District Court to address the SCA issue in the first instance. 66

IV.

For the reasons stated above, we will affirm the

District Court’s dismissal of Walker’s § 1983 claim, because

we find that Appellees are entitled to qualified immunity. We

will vacate in part the District Court’s subsequent order

denying Walker leave to file a second amended complaint, so

that the District Court may address in the first instance

Walker’s attempt to assert a new claim under the SCA.

66

Post-argument, the Supreme Court decided Carpenter v.

United States, 585 U.S. ___, 138 S.Ct. 2206 (2018). As

Carpenter post-dates the events in question, it has no bearing

on the state of the law pertinent to the qualified immunity

analysis. Any impact of Carpenter on the SCA claim is in the

first instance for the District Court on remand.

22