Jamila Russell v. Superior Court of the Virgin I

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 17-2255

_______________

JAMILA RUSSELL; L.T.

v.

SUPERIOR COURT MARSHAL CHRISTOPHER

RICHARDSON,

IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;

GOVERNMENT OF THE VIRGIN ISLANDS; SUPERIOR

COURT OF THE VIRGIN ISLANDS,

Superior Court of the Virgin Islands,

Superior Court Marshal Christopher Richardson,

in his individual and official capacity,

Appellants

_______________

On Appeal from the District Court

of the Virgin Islands

(D.V.I. Civ. No. 1-15-cv-00049)

Honorable Anne E. Thompson, U.S. District Judge

_______________

Argued: May 22, 2018

Before: KRAUSE, ROTH, and FISHER, Circuit Judges

(Opinion Filed: September 25, 2018)

Gordon C. Rhea, Esq. [Argued]

Richardson Patrick Westbrook & Brickman

1037 Chuck Dawley Boulevard

Building A

Mount Pleasant, SC 29464

Yvette D. Ross-Edwards, I, Esq.

Law Office of Yvette Ross-Edwards

429 King Street, Suite 8

Frederiksted, VI 00840

Counsel for Plaintiff-Appellees Jamila Russell and

L.T.

Paul L. Gimenez, Esq. [Argued]

Superior Court of the Virgin Islands

Office of General Counsel

P.O. Box 70

St. Thomas, VI 00804

Counsel for Defendant-Appellant Superior Court of

the Virgin Islands and Christopher Richardson

Ian S.A. Clement, Esq.

Su-Layne U. Walker, Esq.

Office of Attorney General of Virgin Islands

Department of Justice

34-38 Kronprindsens Gade

2

GERS Complex, 2nd Floor

St. Thomas, VI 00802

Counsel for Defendant-Appellee Government of the

Virgin Islands

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

In this tragic case, after Appellee Jamila Russell

enlisted the help of the Virgin Islands Superior Court and its

Court Marshals with her truant teenage son, L.T., Deputy

Marshal Chris Richardson allegedly shot him at his home,

unarmed and mostly undressed, rendering him a quadriplegic.

Russell filed suit and the District Court denied the motions of

Richardson and the Superior Court to dismiss on various

immunity grounds. In this interlocutory appeal, we consider,

among other things, whether judicial immunity extends to

protect an officer from a suit challenging the manner in which

he executed a court order. Because we, like the District

Court, conclude it does not, and the District Court’s thorough

and careful opinion properly disposed of the motions in

almost all respects, we will affirm except as to Appellees’

claim for gross negligence, for which the Virgin Islands has

not waived sovereign immunity and which thus should be

dismissed on remand.

3

I. Background

A. Factual Background1

At the time of the conduct at issue in this case, L.T.

was 15 years old and had been designated by the Virgin

Islands Superior Court a “Person in Need of Supervision”

(PINS), meaning a “child” who, among other things,

“habitually disobeys the reasonable demands of the person

responsible for the child’s care and is beyond their control.”

V.I. Code Ann. tit. 5, § 2502(23). That designation also

subjected L.T. to a court order directing him to “follow the

reasonable rules of his mother while living with her.” JA 18.

Apparently, however, his mother continued to have problems

with his behavior.

One day, concluding she needed “assistance” with

ensuring L.T.’s compliance, Russell contacted the Superior

Court and “requested that [L.T.] be brought before the judge

to answer for his behavior.” JA 18. According to the

complaint, she also “advised that her son was at home in his

bed.” JA 18. In response to her request, several Superior

Court Marshals, including Deputy Marshal Christopher

Richardson, arrived at Russell’s home later that day. L.T.

was at that point “relaxing in his room, in his underwear and

1

As this is an appeal of the denial of motions to

dismiss for failure to state a claim and lack of subject matter

jurisdiction, the factual allegations are taken from the

operative complaint and accepted as true. Krieger v. Bank of

Am., N.A., 890 F.3d 429, 434 (3d Cir. 2018); Batchelor v.

Rose Tree Media Sch. Dist., 759 F.3d 266, 271 (3d Cir.

2014).

4

unarmed.” JA 19. The precise sequence of events that

unfolded is unclear at this stage, but, according to the

complaint, “Richardson shot [L.T.] under circumstances that

were unjustified and an excessive use of force since [L.T.]

was unarmed and did not threaten bodily harm to the

marshals or third parties as he was attempting to run past the

marshals.”2 JA 19.

L.T. was airlifted to Puerto Rico for medical treatment,

but the shooting rendered him a quadriplegic.

B. Procedural History

Russell eventually filed this action on behalf of herself

and L.T. (collectively, “the Family”)3 in the District Court of

the Virgin Islands. The operative complaint included claims

against Richardson under 42 U.S.C. § 1983 for excessive

2

In their brief, Appellants take it upon themselves to

offer additional clarity by pointing to extra detail found not in

the complaint but rather in the Marshals’ own affidavits and

an internal incident report that the Marshal’s Office filed with

the Superior Court after the shooting. At this stage, however,

we, like the District Court, “must consider only the

complaint, exhibits attached to the complaint, matters of

public record, as well as undisputedly authentic documents if

the complainant’s claims are based upon these documents.”

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

3

L.T. reached the age of majority after the complaint

was filed, and, as the caption here reflects, he is now a party

to this case in his own right.

5

force and under territorial law for negligence, gross

negligence, and negligent and intentional infliction of

emotional distress, as well as claims against the Superior

Court for negligence, negligent hiring and retention, and

vicarious liability.4 As relevant to the claims at issue in this

appeal, Richardson and the Superior Court (together,

“Appellants”) filed motions to dismiss under Federal Rules of

Procedure 12(b)(1) and 12(b)(6), with Richardson arguing he

enjoyed a form of absolute immunity known as “quasi-

judicial” immunity and qualified immunity with respect to the

§ 1983 claim, and both parties arguing they enjoyed

sovereign immunity with respect to the tort claims.

The District Court rejected those arguments. As to

Richardson’s claim of quasi-judicial immunity, the District

Court acknowledged that many cases have granted such

immunity to officers who have been sued for their role in

enforcing court orders but determined that the reasoning

behind those cases “d[id]n’t cover shooting somebody.”

JA 69. The Court therefore held that absolute immunity did

not apply. And while the Court recognized that the qualified

immunity issue should be decided “at the earliest point

possible in the case,” JA 12; see Hunter v. Bryant, 502 U.S.

224, 227 (1991) (per curiam) (noting “the importance of

resolving immunity questions at the earliest possible stage in

litigation”), it found this case “too fact sensitive for [it] to

4

While the complaint also named as a defendant the

Government of the Virgin Islands, none of the claims was

expressly directed at the Government and it is not a party to

this appeal. It has, however, filed a brief in support of

Appellants.

6

make that kind of ruling now, without discovery,” JA 85.

Instead, it explained, Richardson would be permitted to renew

the defense once a “fuller factual record ha[d] been

developed.” JA 12.

As to the sovereign immunity asserted by both

defendants, the District Court recognized that, to bring a tort

claim against the Virgin Islands Government, its departments,

or its employees in their official capacities, a plaintiff must

comply with the terms of the Virgin Islands Tort Claims Act,

V.I. Code Ann. tit. 33, §§ 3401–3417, as a predicate to the

courts’ jurisdiction. But it rejected defendants’ argument that

the Family had failed to do so, either by filing an inadequate

“notice of intention to file a claim” or by failing to file a

“claim.” “[S]ubstantial compliance with the statute is all that

is required,” JA 11 (quoting Brunn v. Dowdye, 59 V.I. 899,

910 (2013)), the Court observed, and the Family had

“sufficiently complied,”5 JA 11.

5

The District Court did dismiss claims for “negligent

hiring and retention and negligent supervision/training

contained in Counts III and IV” for failure to comply with the

VITCA, JA 11, but those claims are not at issue in this

appeal. We note, for the sake of clarity, that the references to

“Counts III and IV” appear to be references to each of the two

counts listed sequentially in the complaint as “Count III,” the

first of which was for negligent training and supervision and

the second of which was for negligent hiring and retention.

The actual Count IV of the complaint asserted vicarious

liability against the Superior Court as Richardson’s employer,

which, of course, merely reflects the “basis to extend the

liability of [Richardson’s] underlying torts” reflected in the

VITCA itself. Bonelli v. Gov’t of the Virgin Islands, No. ST-

7

Following the denial of their motions to dismiss,

Appellants filed an omnibus motion for reconsideration,

clarification, and a more definite statement, and asked the

District Court to stay discovery until both that motion and the

forthcoming appeal to this Court had been resolved. But they

soon withdrew the omnibus motion, and the District Court

declined to issue a stay, ordering discovery to proceed “solely

on the issue of . . . qualified immunity,” JA 14. Appellants

then filed this timely appeal. Appellants also filed a motion

to stay discovery pending appeal, which we denied.

Discovery continued and, by the time of oral argument in this

case, was nearly complete.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.

§ 1331 and 28 U.S.C. § 1367(a). Under the collateral order

doctrine, we have jurisdiction to review a denial of quasi-

judicial or qualified immunity insofar as it turns on an issue

of law. Mitchell v. Forsyth, 472 U.S. 511, 529 (1985);

Hamilton v. Leavy, 322 F.3d 776, 782 (3d Cir. 2003). The

question whether that doctrine also vests us with jurisdiction

over a denial of the Virgin Islands’ sovereign immunity has

not previously been addressed by this Court, but for the

reasons we will discuss in more detail below, we conclude

that it does. See infra Part III.C.1.

13-CV-175, 2015 WL 1407259, at *5 (V.I. Super. Ct. Mar.

19, 2015), aff’d, 67 V.I. 714 (2017); cf. Lomando v. United

States, 667 F.3d 363, 373 n.8 (3d Cir. 2011) (“All [Federal

Tort Claims Act] liability is respondeat superior liability[.]”

(citation omitted)).

8

We review de novo a denial of quasi-judicial,

qualified, or sovereign immunity. Karns v. Shanahan, 879

F.3d 504, 512 (3d Cir. 2018); Dotzel v. Ashbridge, 438 F.3d

320, 324–25 (3d Cir. 2006).

III. Discussion

Appellants contend that the District Court erred in

denying Richardson quasi-judicial immunity and qualified

immunity and in denying them both sovereign immunity.6

We address each of these three immunity doctrines below.

6

Richardson’s quasi-judicial and qualified immunity

defenses apply to the extent he has been sued in his individual

capacity, and his sovereign immunity defense applies to the

extent he has been sued in his official capacity. See Kentucky

v. Graham, 473 U.S. 159, 166–67 (1985) (“[A]n official in a

personal-capacity action may, depending on his position, be

able to assert personal immunity defenses . . . . In an official-

capacity action, these defenses are unavailable. The only

immunities that can be claimed in an official-capacity action

are forms of sovereign immunity[.]” (citations omitted));

Davis v. Knud-Hansen Mem’l Hosp., 635 F.2d 179, 186 (3d

Cir. 1980) (holding that the Virgin Islands’ statutory

sovereign immunity “does not provide any immunity to

Government officers or employees sued in their individual

capacities”).

9

A. Quasi-Judicial Immunity

We start with Richardson’s argument that he cannot be

sued for using excessive force because, just as a judge enjoys

absolute “judicial immunity” for an official act like issuing a

PINS order, so too does Richardson enjoy “quasi-judicial”

immunity for his official acts in enforcing that order. We

briefly review the history of this immunity doctrine before

turning to its application to this case.

1. The Quasi-Judicial Immunity Doctrine

Quasi-judicial immunity, as one might guess, evolved

out of its well-known namesake, judicial immunity. “Few

doctrines were more solidly established at common law than

the immunity of judges from liability for damages for acts

committed within their judicial jurisdiction[.]” Pierson v.

Ray, 386 U.S. 547, 553–54 (1967). That immunity secures a

“general principle of the highest importance to the proper

administration of justice”: ensuring that a “judicial officer, in

exercising the authority vested in him, shall be free to act

upon his own convictions, without apprehension of personal

consequences to himself,” Bradley v. Fisher, 80 U.S. (13

Wall.) 335, 347 (1871), and “without harassment or

intimidation” in those “controversies sufficiently intense to

erupt in litigation,” Butz v Economou, 438 U.S. 478, 512

(1978). Judicial immunity is thus essential to judges’ ability

to exercise “independent and impartial . . . judgment.”

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993).

The fair administration of justice depends not only on

judges, however, and these same concerns apply to “certain

others who perform functions closely associated with the

10

judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200

(1985). For that reason, so-called “quasi-judicial” immunity

has been extended over time to protect a range of judicial

actors, including (1) those who make discretionary judgments

“functional[ly] comparab[le]” to judges, such as prosecutors

and grand jurors, Imbler v. Pachtman, 424 U.S. 409, 423 n.20

(1976); (2) those who “perform a somewhat different function

in the trial process but whose participation . . . is equally

indispensable,” such as witnesses, Briscoe v. LaHue, 460 U.S.

325, 345–46 (1983); and (3) those who serve as “‘arms of the

court,’ . . . fulfill[ing] a quasi-judicial role at the court’s

request,” such as guardians ad litem or court-appointed

doctors, Hughes v. Long, 242 F.3d 121, 126 (3d Cir. 2001).

In this case, we focus on the last category.

In determining whether a government actor was

fulfill[ing] a quasi-judicial role at the court’s request, we take

a “‘functional’ approach to immunity,” Forrester v. White,

484 U.S. 219, 224 (1988). That is, “we examine the nature of

the functions with which a particular official or class of

officials has been lawfully entrusted, and we seek to evaluate

the effect that exposure to particular forms of liability would

likely have on the appropriate exercise of those functions.”

Id. Merely being “part of the judicial function,” even an

“extremely important” part, will not automatically entitle one

to quasi-judicial immunity. Antoine, 508 U.S. at 435–36

(refusing to extend such immunity to court reporters). Even a

judge will not enjoy immunity for “nonjudicial actions, i.e.,

actions not taken in [her] judicial capacity,” or for judicial

actions “taken in the complete absence of all jurisdiction.”

Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (per curiam).

Absolute immunity, we have been told time and again, is

“strong medicine,” Forrester, 484 U.S. at 230 (citation

11

omitted), and the “presumption is that qualified rather than

absolute immunity is sufficient to protect government

officials in the exercise of their duties,” Burns v. Reed, 500

U.S. 478, 486–87 (1991). Accordingly, an “official seeking

absolute immunity bears the burden of showing that such

immunity is justified for the function in question.” Id. at 486.

2. Application to This Case

Appellants here contend that the relevant function that

justifies affording Richardson absolute immunity is “the

enforcement of judicial orders by a court’s marshal.”

Appellants’ Br. 22. Reading two of our precedents and one

from the Tenth Circuit as standing for a categorical rule that

“any public official acting pursuant to a court directive is

immune from suit,” regardless of the specific action

challenged in that suit, Appellants argue that Richardson

enjoys immunity from the excessive force claim here because

at the time he shot L.T. he was acting “at the direction of a

judge.” Appellants’ Br. 21. And, according to Appellants,

“[t]here simply cannot be one rule for a deputy who is able to

accomplish th[at] directive without incident and a different

rule for a deputy who meets with resistance that results in an

injury or death.” Appellants’ Br. 27.

The problem with this argument is that it ignores the

distinction between claims based on the actions actually

authorized by court order, which are barred by quasi-judicial

immunity, and those based on the manner in which a court

order is enforced, which are not. As we explain below, that

distinction dates to common law, has been consistently

recognized by the Courts of Appeals, and is all but dictated

by the “functional” approach to modern-day immunity. It

12

also leads us to affirm the District Court’s denial of absolute

immunity to Richardson.

We start with the common law, which informs our

consideration of immunities available under § 1983. Rehberg

v. Paulk, 566 U.S. 356, 362–63 (2012). Historically, the

“rule” was that a “ministerial officer [wa]s protected in the

execution of process issued by a court,” meaning that, for

example, a “sheriff” was “protect[ed] . . . in making [an]

arrest.” Tuttle v. Wilson, 24 Ill. 553, 561 (1860). It was also

clear, however, that when such a “quasi-judicial officer . . .

act[ed] ministerially,” he could be “liable for carelessness or

negligence like any other ministerial officer.” Floyd R.

Mechem, A Treatise on the Law of Public Offices and

Officers § 643, at 429 (Chicago, Callaghan & Co. 1890)

(emphasis omitted) (hereinafter Mechem). And because an

arrestee was “entitled to be treated with ordinary humanity,

and any unnecessary severity could not be justified by the

writ,” Thomas M. Cooley, A Treatise on the Law of Torts or

the Wrongs Which Arise Independent of Contract 395

(Chicago, Callaghan & Co. 1879), the common law provided

that, “though the process for the arrest of the defendant is

valid, yet the officer may render himself liable to the

defendant for abuses of his process, as where the officer . . .

uses excessive force,” Mechem § 771, at 509. The

authorization/manner distinction thus applied with particular

force to officers tasked with making arrests.

Contrary to Richardson’s contention, our own case law

to date has adhered to this distinction. In Lockhart v.

Hoenstine, 411 F.2d 455 (3d Cir. 1969), where the defendant

had sued the court prothonotary for unlawfully refusing to file

his appeal papers, we held that the prothonotary enjoyed

13

absolute immunity because his refusal was “at the direction of

the court,” and “any public official acting pursuant to court

directive is . . . immune from suit.” Id. at 460. Likewise, in

Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975), we granted

immunity to an investigator for the public defender for

“act[ing] under orders of the . . . court” to help extradite the

plaintiff for prosecution, id. at 205, reasoning that the

investigator’s “only function . . . [wa]s to assist in the defense

of the accused” and he “ha[d] no power to deprive anyone of

his or her rights,” id. at 207. We observed that other cases

had immunized “police officers engaged in ministerial

functions under [a judge’s] direction,” id. at 206, but we

noted that such immunity only extended to “officers acting

properly under a warrant or other lawful process,” id. at 207

n.6. These cases thus distinguished between acts that were

authorized by court order and acts that exceeded such

authorization, but neither squarely addressed whether quasi-

judicial immunity extends to the manner in which an officer

executes a court order.

Other Courts of Appeals have confronted that

question, however, and have consistently concluded that

absolute immunity does not extend so far.

Richardson purports to draw support from Valdez v.

City and County of Denver, 878 F.2d 1285 (10th Cir. 1989),

where the Tenth Circuit “h[e]ld that an official charged with

the duty of executing a facially valid court order enjoys

absolute immunity from liability for damages in a suit

challenging conduct prescribed by that order.” Id. at 1286.

But the Valdez court went on to caution that, “of course, an

official performing ministerial tasks with less than due care

may be liable for damages.” Id. at 1289 n.6. And the

14

following year, the Tenth Circuit even more clearly rejected

the argument that officers enjoy quasi-judicial immunity for

excessive force claims, explaining that, “[w]hile the immunity

granted in Valdez protects defendants from liability for the

actual arrest, it does not empower them to execute the arrest

with excessive force,” nor does it provide “absolute[]

immun[ity] from liability for the manner in which [officers]

carry out otherwise proper court orders.” Martin v. Bd. of

Cty. Comm’rs, 909 F.2d 402, 404–05 (10th Cir. 1990) (per

curiam). Instead, the court reasoned, because a judicial order

“contains an implicit directive” that it be “carried out in a

lawful manner,” officers who “exceed[] legal bounds in

executing [that order] . . . have a fortiori violated the very . . .

order under which they seek the shelter of absolute

immunity.” Id. at 405.

The Seventh and Ninth Circuits share in that view.7 In

Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001), the court

observed that the grounds for extending quasi-judicial

immunity are “most compelling” when the suit challenges

“conduct specifically directed by the judge, and not simply

the manner in which the judge’s directive was carried out,”

id. at 437. The latter type of suit neither amounts to a

“collateral attack on the judge’s order,” nor places the officer

7

Cf. Martin v. Hendren, 127 F.3d 720, 721–22 (8th

Cir. 1997) (upholding dismissal of an excessive force claim

against a courtroom officer where the judge explicitly ordered

the officer to “put the cuffs on [the plaintiff]” on the grounds

that the officer was “obeying specific judicial commands to

restore order in the courtroom” and he “carr[ied] out a

judicial command in the judge’s courtroom and presence”).

15

in the position of “being called upon to answer for

wrongdoing directed by the judge” that he is “powerless to

avoid.” Id. at 436, 438. Rather, the court explained, such a

suit focuses solely on the officer’s “own conduct.” Id. at 438.

As a result, Richman held, quasi-judicial immunity should

extend to officers “who do nothing more than implement” a

judicial order—but no further. Id. The Ninth Circuit too has

applied these principles to reject quasi-judicial immunity

where the official “act[s] beyond the scope of [the judge]’s

express and implied instructions,” and so is “exposed to

liability (but still protected by qualified immunity) only

because he allegedly went beyond what the judge ordered.”

Brooks v. Clark Cty., 828 F.3d 910, 917–18 (9th Cir. 2016).8

8

Although Appellants do not cite the case, both the

Seventh and Ninth Circuits wrestled with the question

whether Mireles v. Waco, 502 U.S. 9 (1991) (per curiam),

suggested a different result. We agree with them that it does

not. In Mireles, the Supreme Court held that a judge

maintained judicial immunity for expressly ordering the

plaintiff brought to his courtroom “forcibly and with

excessive force.” Id. at 10. While noting that “[o]f course, a

judge’s direction . . . to carry out a[n] . . . order with

excessive force” is not a judicial act, the Court reasoned that

the “relevant inquiry is the ‘nature’ and ‘function’ of the act,

not the ‘act itself,’” for “if only the particular act in question

were to be scrutinized, then any mistake of a judge in excess

of his authority would become a ‘nonjudicial’ act, because an

improper or erroneous act cannot be said to be normally

performed by a judge.” Id. at 12–13. In other words, Mireles

arose in the traditional judicial immunity context, as the

plaintiff had “challenged the judge’s order directly . . . by

suing the judge,” and, though the judge there had allegedly

16

Today, we join our Sister Circuits and make explicit

what was implicit in our decisions in Lockhart and Waits:

Quasi-judicial immunity extends only to the acts authorized

by court order, i.e., to the execution of a court order, and not

to the manner in which it is executed. Here, the court order at

issue is the PINS order, which merely required L.T. to follow

his mother’s “reasonable rules,” and the Family does not

claim that Richardson violated the law by performing acts

authorized under that order; instead, they claim that

Richardson exceeded the authorization of that order and used

excessive force in the manner of its execution. And, indeed,

given the terms of the PINS order, the act of shooting L.T.

was obviously not “at the direction of a judge.”9 Because an

ordered the use of excessive force, the Court merely

reaffirmed the basic principle that the “applicability of

absolute immunity cannot turn on the correctness of the

judge’s decision.” Richman, 270 F.3d at 436. The court

order here, however, did not instruct Richardson to use

excessive force; indeed, it did not instruct him to use any

force at all. Rather, as in Martin, Richman, and Brooks, the

basis for this suit is that Richardson employed more force

than he was authorized by any court order to use.

9

Nor is it even clear that the shooting occurred while

Richardson was acting “at the direction of a judge.”

According to the complaint, the only reason Richardson went

to the house that day was that Russell had “sought . . .

assistance . . . with enforcing the court’s order,” JA 18—not

because a judge had instructed him to do so. In any event,

even assuming Richardson was acting pursuant to court order,

but see Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d

Cir. 2018) (at this stage we must construe all “reasonable

17

officer’s “fidelity to the specific order[] of the judge marks

the boundary for labeling [his] act ‘quasi-judicial,’” Richman,

270 F.3d at 436, and a court order “carries an implicit caveat

that the officer follow the Constitution” in executing it,

Brooks, 828 F.3d at 919, where the claim is that an officer

exceeded those bounds, quasi-judicial immunity does not

stand in the way. See id. at 917–19; Richman, 270 F.3d at

437–39; Martin, 909 F.2d at 404–05; cf. Waits, 516 F.2d at

207 n.6 (immunity extends only to “officers acting properly

under . . . lawful process”).

Finally, our holding is virtually compelled by the rule

that any new extension of absolute immunity must be

“justified . . . by the functions it protects and serves, not by

the person to whom it attaches.” Forrester, 484 U.S. at 227.

This approach requires us first to “examine the nature of the

functions with which a particular official . . . has been

lawfully entrusted,” id. at 224, with the “relevant decisional

material” being the “legal and structural components of the

job function,” Dotzel, 438 F.3d at 325. We then “evaluate the

effect that exposure to particular forms of liability would

likely have on the appropriate exercise of those functions.”

Forrester, 484 U.S. at 224. Absent “overriding

considerations of public policy,” absolute immunity will not

apply. Id.

As relevant here, Virgin Islands law assigns Superior

Court Marshals the functions of “execut[ing] all writs,

inferences” from the pleaded facts “in a light most favorable

to the non-movant”), he is not entitled to quasi-judicial

immunity for the reasons we explain.

18

processes and orders of the Superior Court,” and

“perform[ing] such other duties incident to” the execution of

those writs, processes, and orders. V.I. Code Ann. tit. 4,

§ 351(b). But while those functions, with which the Marshals

are “lawfully entrusted,” are fully protected by quasi-judicial

immunity, the use of excessive force in the performance of

those functions is neither “at the direction of the judge,”

Waits, 516 F.2d at 206, nor a “dut[y] incident to” the

execution of the judge’s order, § 351(b). We measure an

officer’s acts against the yardstick of that officer’s functions,

and—contrary to Appellants’ insistence that an officer is

immune for all acts incident to the execution of a court order,

regardless how “less-than-perfect” those actions may be,10

Reply Br. 8—we extend quasi-judicial immunity only to acts

consistent with the “appropriate exercise of those functions.”

Forrester, 484 U.S. at 224 (emphasis added). The Family’s

claim, however, is premised on an alleged inappropriate

exercise of those functions.

For all of these reasons, we will affirm the District

Court’s denial of quasi-judicial immunity.

10

Appellants’ approach would turn immunity

jurisprudence on its head, ignoring the “presumption . . . that

qualified rather than absolute immunity is sufficient to protect

government officials in the exercise of their duties,” Burns,

500 U.S. at 486–87, and immunizing law enforcement

officers from suit for any number of civil rights violations

committed while executing any court order, be it an arrest

warrant, search warrant, or any other judicial directive.

19

B. Qualified Immunity

We turn next to Richardson’s contention that, even if

absolute immunity does not apply, the claim against him

should have been dismissed on qualified immunity grounds

because the complaint did not plead a violation of clearly

established law.

“In considering whether qualified immunity attaches,

courts perform a two-pronged analysis to determine:

(1) ‘whether the facts that the plaintiff has alleged make out a

violation of a constitutional right,’ and (2) ‘whether the right

at issue was “clearly established” at the time of the

defendant’s alleged misconduct.’” Kedra v. Schroeter, 876

F.3d 424, 434 (3d Cir. 2017) (alterations omitted) (quoting

Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Because

“‘[c]learly established’ means that, at the time of the officer’s

conduct, the law was ‘sufficiently clear’ that every

‘reasonable official would understand that what he is doing’

is unlawful,” District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018), the right must be “defined in terms of the

‘particularized’ factual context of th[e] case,” Kedra, 876

F.3d at 435 (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). Such “specificity . . . is especially important in

the Fourth Amendment context.” Wesby, 138 S. Ct. at 590.

The allegations here meet that standard. According to

the complaint, Richardson was called to the Family’s house to

“assist[]” in enforcing L.T.’s PINS order and to “br[ing]

[him] before the judge.” JA 18. When Richardson arrived,

L.T. allegedly was “relaxing,” “in his underwear,” and

“unarmed.” JA 19. And, when L.T. “attempt[ed] to run past

the marshals,” Richardson shot him. JA 19. These

20

allegations, taken as true, are sufficient to plead the violation

of a clearly established constitutional right: the right of an

unarmed individual to be free from the use of deadly force

unless such force is “necessary to prevent [his] escape and the

officer has probable cause to believe that [he] poses a

significant threat of death or serious physical injury to the

officer or others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985).

Garner, of course, “lay[s] out excessive-force

principles at only a general level.” White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam). But “general statements of the

law are not inherently incapable of giving fair and clear

warning to officers.” Id. For this reason, while Garner

usually “do[es] not by [itself] create clearly established law,”

it may do so in an “obvious case,” id., for example, where the

circumstances reflect “the absence of a serious threat of

immediate harm to others.” Davenport v. Borough of

Homestead, 870 F.3d 273, 281 (3d Cir. 2017); see also

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)

(“[I]n an obvious case, [Garner’s] standard[] can ‘clearly

establish’ the answer, even without a body of relevant case

law.”).

This is such a case. According to the complaint,

Richardson used deadly force against L.T. even though there

was no indication L.T. was then engaged in any misconduct

beyond disobeying his mother; immediately before the

incident, L.T. was allegedly lounging in his bedroom; and

L.T. allegedly exited his room wearing only underwear,

making it implausible to a reasonable officer that he was

hiding a weapon on his person. Accepting these allegations

as we must at this stage, there was no “serious threat of

immediate harm to others,” Davenport, 870 F.3d at 281, and

21

“[t]he absence of any Garner preconditions to the use of

deadly force” makes this an “obvious case where . . . Garner

clearly establishes the law,” Smith v. Cupp, 430 F.3d 766, 776

(6th Cir. 2005). See Henry v. Purnell, 652 F.3d 524, 527, 536

(4th Cir. 2011) (en banc) (holding, where an officer shot “an

unarmed man wanted for [a] misdemeanor . . . when he

started running away,” that “[n]othing removes this case from

the straightforward context of Garner”).

Appellants marshal two arguments to the contrary.

First, they contend that the definition of the right given by the

Family in its brief here—the “right to be free from injury

through the use of excessive force by law enforcement

officers,” Appellees’ Br. 23—is too general to give officers

fair notice. But in defining the right at issue, we look not

only to the parties’ litigation positions, but also to the

allegations in the complaint. See Ashcroft v. Iqbal, 556 U.S.

662, 673 (2009) (“[W]hether a particular complaint

sufficiently alleges a clearly established violation of law

cannot be decided in isolation from the facts pleaded.”). And,

as discussed, the allegations here were sufficient in view of

Garner.

Second, Appellants take issue with the sufficiency of

the pleading in the complaint, arguing that the District Court

should have dismissed it under Federal Rule of Civil

Procedure 12(b)(6) because it “d[id] not provide sufficient

factual information for the framing of a proper qualified

immunity defense.” Thomas v. Independence Twp., 463 F.3d

285, 302 (3d Cir. 2006); see Iqbal, 556 U.S. at 678 (“Rule 8

. . . demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.”). At the very least, they

argue, the District Court, before allowing limited discovery

22

on that defense, should have considered “other procedural

tool[s],” such as requiring the Family to file a more definite

statement under Federal Rule of Civil Procedure 12(e).

Appellants’ Br. 54.

We are not persuaded. True, where the pleading is as

deficient as in Thomas—which featured a “textbook example

of a pleading as to which a qualified defense cannot

reasonably be framed,” 463 F.3d at 289—a district court has

“several options,” such as ordering a more definite statement,

id. at 301. But the complaint here is not devoid of factual

allegations. To be sure, neither is it long on detail. To

survive a motion to dismiss, however, a complaint need only

contain “sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

678. The Family’s complaint meets that threshold, and the

District Court thoughtfully and thoroughly analyzed the

complaint to conclude this case was “too fact sensitive . . . to

make [a qualified immunity] ruling . . . without discovery.”

JA 85. The District Court thus did not disregard Thomas but

rather hewed to its guidance that “summary judgment remains

a useful tool for precluding insubstantial claims from

proceeding to trial.” 463 F.3d at 301 (citing Crawford-El v.

Britton, 523 U.S. 574, 600 (1998)). As we perceive no error

in the denial of qualified immunity at this stage, we will

affirm.

C. Sovereign Immunity

Finally, we turn to Appellants’ claim of sovereign

immunity under the Revised Organic Act (“Act”), the federal

law that “[w]e have described . . . as the [Territory’s] basic

charter of government,” Pichardo v. V.I. Comm’r of Labor,

23

613 F.3d 87, 93 n.6 (3d Cir. 2010), and that “confer[s] upon

[the Virgin Islands] attributes of autonomy similar to those of

a sovereign government or state,” Richardson v. Knud

Hansen Mem’l Hosp., 744 F.2d 1007, 1010 (3d Cir. 1984).

One of those attributes is that “no tort action shall be brought

against the government of the Virgin Islands or against any

officer or employee thereof in his official capacity without the

consent of the legislature.” 48 U.S.C. § 1541(b).

Before addressing the merits of Appellants’ sovereign

immunity claim, however, we must assure ourselves that we

have jurisdiction to do so. See Gayle v. Warden Monmouth

Cty. Corr. Inst., 838 F.3d 297, 303 (3d Cir. 2016).

1. Jurisdiction

Appellants contend that we have jurisdiction to review

the District Court’s denial of sovereign immunity under the

collateral order doctrine, which allows certain decisions that

“do not terminate the litigation” to nonetheless count as “final

decisions of the district courts” if they are (1) “conclusive,”

(2) “resolve important questions completely separate from the

merits,” and (3) “would render such important questions

effectively unreviewable on appeal from final judgment in the

underlying action,” Digital Equip. Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 865, 867 (1994) (quoting 28 U.S.C.

§ 1291). And they base that contention on Puerto Rico

Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506

U.S. 139 (1993).

Metcalf & Eddy, however, does not squarely answer

the question of jurisdiction for this case because the Supreme

Court held there that the collateral order doctrine applies to

24

the denial of a State’s Eleventh Amendment immunity and we

have not yet resolved whether the Eleventh Amendment

applies to the Virgin Islands. See United Steel Paper &

Forestry Rubber Mfg. Allied Indus. & Serv. Workers Int’l

Union AFL-CIO-CLC v. Gov’t of Virgin Islands, 842 F.3d

201, 207 n.2 (3d Cir. 2016),11 As it turns out, however, we

also need not resolve it today, because Appellants here have

invoked sovereign immunity under the Revised Organic Act,

and we conclude that statutory sovereign immunity, no less

than Eleventh Amendment immunity, meets the criteria for

the collateral order doctrine.

11

The Eleventh Amendment provides, in relevant part,

that federal courts lack jurisdiction to hear “any suit . . .

commenced or prosecuted against one of the United States by

Citizens of another State.” U.S. Const. amend. XI. “While

the Amendment by its terms does not bar suits against a State

by its own citizens, th[e Supreme] Court has consistently held

that an unconsenting State is immune from suits brought in

federal courts by her own citizens as well as by citizens of

another State.” Edelman v. Jordan, 415 U.S. 651, 662–63

(1974). Some, but not all, United States Territories have been

held to lack Eleventh Amendment protections. Compare,

e.g., Norita v. Northern Mariana Islands, 331 F.3d 690, 693–

94 (9th Cir. 2003) (the Northern Mariana Islands is not

protected), with Grajales v. P.R. Ports Auth., 831 F.3d 11, 15

(1st Cir. 2016) (Puerto Rico is). Because neither party asks

us to resolve whether the Virgin Islands falls within the

Amendment’s reach and we need not do so to conclude we

have jurisdiction here, the question, as in United Steel Paper,

is one “we do not decide today.” 842 F.3d at 207 n.2.

25

The first and third criteria are easily satisfied. By

providing that “no tort action shall be brought” against the

Government without its consent, the Act makes clear that the

Territory’s immunity is an “immunity from trial and the

attendant burdens of litigation . . . , and not just a defense to

liability on the merits.” Fed. Ins. Co. v. Richard I. Rubin &

Co., 12 F.3d 1270, 1281 (3d Cir. 1993). A denial of this

immunity, like the denial of Eleventh Amendment immunity,

is a “conclusive determination[] that [the Virgin Islands] ha[s]

no right not to be sued,” and the “value” of this immunity will

be “for the most part lost as litigation proceeds past motion

practice.” Metcalf & Eddy, 506 U.S. at 145.

Our jurisdiction thus depends on the second criterion:

whether a denial of the Virgin Islands’ statutory sovereign

immunity is sufficiently “important” and “separate from the

merits” of the underlying action to trigger the collateral order

doctrine. Digital Equip., 511 U.S. at 867. In Metcalf &

Eddy, the Court concluded that a State’s invocation of

Eleventh Amendment immunity met those requirements

because it “involve[d] a claim to a fundamental constitutional

protection.” 506 U.S. at 145. But statutory immunity, the

Court has made clear, is no less significant: “When a policy is

embodied in a constitutional or statutory provision entitling a

party to immunity from suit (a rare form of protection), there

is little room for the judiciary to gainsay its ‘importance.’”

Digital Equip., 511 U.S. at 879 (emphasis added). And the

Court recently has characterized Metcalf & Eddy without

regard to its constitutional dimension, describing the

“particular value of a high order” there as “respecting a

State’s dignitary interests.” Will v. Hallock, 546 U.S. 345,

26

352 (2006). The Territory’s “dignitary interests” in its

assertion of statutory immunity also command our respect.12

Having satisfied ourselves of our jurisdiction under the

collateral order doctrine, we turn to the merits of Appellants’

claim of sovereign immunity.

2. Merits

Pointing out that compliance with the requirements of

the Virgin Islands Tort Claims Act (VITCA) is a prerequisite

for its waiver of immunity from tort liability, Appellants

argue that the Family failed to comply in two ways: first, by

filing an insufficient notice of intention to file a claim, and,

second, by failing to file a “claim.” These arguments are

perplexing, to say to the least, as they are flatly contradicted

by the record.

12

More than once we have found statute-based

immunities to implicate sufficiently weighty interests to

warrant application of the collateral order doctrine. See Oss

Nokalva, Inc. v. European Space Agency, 617 F.3d 756, 761

(3d Cir. 2010) (doctrine applies to denial of immunity under

the International Organizations Immunities Act); Fed. Ins.

Co., 12 F.3d at 1281–82 (same for denial of immunity under

the Foreign Sovereign Immunities Act); cf. Aliota v. Graham,

984 F.2d 1350, 1353–54 (3d Cir. 1993) (same for order

resubstituting a federal employee for the United States under

the Westfall Act, which “effectively denies [the] employee’s

claim to absolute immunity”).

27

We begin with the notice, the purpose of which is to

give the Government “enough information to enable [it] to

make an investigation in order to determine if the claims

should be settled without suit.” Abdallah v. Callender, 1 F.3d

141, 148 (3d Cir. 1993). The VITCA provides that a notice

of intention must be filed in the Office of the Governor of the

Virgin Islands and served on the Attorney General within

ninety days after the claim accrued. V.I. Code Ann. tit. 33,

§ 3409(c).13 It “shall state the time when and the place where

such claim arose” and “the nature of same,” and must also be

“verified.” Id. § 3410.

Less than a month after the shooting, the Family

served the following notice on the Governor and Attorney

General:

Re: Action for Personal

Injury and Civil Rights

Violations pursuant to 42

U.S.C. § 1983 against the

Government of the

Virgin Islands, Superior

Court of the Virgin

Islands and Marshal Carl

Richardson

...

13

While the statute states that a claimant need not file

a notice of intention if she files the claim itself within the

ninety-day period, it is undisputed that Russell did not file a

claim within ninety days, and she was therefore required to

file a notice of intention.

28

Notice of intent is hereby

given to file a claim in accordance

with 33 V.I.C. § 3410 against

Government of the Virgin Islands,

the Superior Court of the Virgin

Islands and Superior Court

Marshal Carl Richardson on

behalf of Jamila Russell,

individually and as next of kin to

[L.T.], a minor, for personal

injuries and civil rights violations.

On July 11, 2013, [L.T.], while in

his home was shot by a Superior

Court Marshal who exercised

unnecessary use of force, and

caused serious personal injury to

[L.T.], a minor. The minor, [L.T.]

had to be airlifted to a medical

facility in San Juan, Puerto Rico

for further treatment. As a result

of the incident, [L.T.] is not [sic] a

quadriplegic who will require

lifelong medical care and

treatment as he is unable to

breathe on his own. The damages

in this case exceed the statutory

cap herein.

JA 30. In the bottom-left corner of the notice was a notary’s

stamp and signature.

Despite that accurate preview of the forthcoming

complaint, Appellants decry “numerous defects,” Reply Br. 9,

29

chief among them that the notice allegedly contains “no facts

alleged or notice provided as to any of th[e tort] claims,”

Appellants’ Br. 33. Citing Fleming v. Cruz, 62 V.I. 702,

718–19 (2015), Appellants say these defects are “fatal”

because the VITCA requires “strict[] compl[iance].”

Appellants’ Br. 32.

Neither assertion is accurate. To start with, Appellants

misstate the relevant standard. As the District Court correctly

recognized, the Virgin Islands Supreme Court has made clear

that “substantial compliance with [the VITCA] is all that is

required.” Brunn, 59 V.I. at 910. The statute’s purpose, after

all, is “not to hamper and harass the claimant” but merely to

give the Government and relevant officers “prompt notice of

the damages or injuries and the surrounding circumstances in

order that the matter might be investigated and . . . liability

determined.” Id. “If the notice is sufficiently definite to

inform the officers . . . of the time and cause of claimant’s

injuries or damages, it should be upheld.” Id. (brackets

omitted). Fleming is not to the contrary, as that case held

only that the VITCA’s filing deadlines are construed strictly,

62 V.I. at 718, and it is beyond dispute that the notice here

was timely filed.

Moreover, even if strict compliance were required, the

Family’s notice would pass muster as we perceive no

requirement imposed by the plain text of § 3410 with which

the Family did not comply. But Appellants do—eleven of

them, to be precise. Yet none is even colorable. Appellants

state, for example, that the notice “does not provide a time or

place where the alleged incident occurred,” “does not identify

. . . Russell as filing a claim on behalf of . . . [L.T.],” is “not

verified,” and lacks a “receipt . . . confirming [its] filing” with

30

the Governor. Appellants’ Br. 40–42. The Family’s notice,

however, plainly states that L.T. was shot “[o]n July 11,

2013” in his “home” (the “time” and “place” where the claim

arose); it asserts that it is filed “on behalf of Jamila Russell,

individually and as next of kin to [L.T.], a minor, for personal

injuries and civil rights violations”; it is verified by a notary’s

stamp and signature;14 and it is accompanied by certified mail

receipts showing it was served on the Governor and Attorney

General.

Other alleged deficiencies are premised on

“requirements” of Appellants’ own invention—such as an

alleged failure to mention specific tort theories by name,

although the Virgin Islands Supreme Court has held it is “not

necessary” for the notice to “provide a precise legal theory

upon which recovery is sought,” Brunn, 59 V.I. at 910, or an

alleged error in Russell describing herself as her son’s “next

14

With respect to verification, Appellants’ counsel

declared for the first time at oral argument that the term, as

used in the VITCA, means something other than notarization.

But he offered no authority for that proposition; in fact, the

only case Appellants cite having anything to do with

verification cuts against them, as the court there deemed the

claim unverified for “lack of a notarization.” McBean v.

Gov’t of Virgin Islands, 19 V.I. 383, 386 (Terr. Ct. 1983).

Consistent with normal legal usage and in the absence of

other authority, we consider the requirement that the notice be

“verified” as satisfied by proof it was notarized. See

Verification, Black’s Law Dictionary (10th ed. 2014) (“A

formal declaration made in the presence of an authorized

officer, such as a notary public[.]”).

31

of kin” because he is not deceased, although Appellant offers

no authority for the proposition that the use of the term is so

limited. Appellants also nitpick what are obviously

typographical errors, such as recitation of Richardson’s first

name as “Carl” instead of “Chris” or of L.T.’s status as “not a

quadriplegic” instead of “now a quadriplegic.” We will not

deny jurisdiction on the basis of such quibbles when the

Family’s notice was “sufficiently definite to inform the

officers . . . of the time and cause of claimant’s injuries or

damages.” Brunn, 59 V.I. at 910.15

15

By plucking from its context Brunn’s statement that

a “failure to make any reference, let alone any meaningful

reference, to the allegedly negligent actions of the

Government” renders a notice insufficient, Appellants’ Br. 35

(quoting 59 V.I. at 911), Appellants ignore just how closely

Brunn tracks the history of this case. The notice in Brunn

alleged that a woman had been killed by a police officer and

stated an intent to sue the police department for negligent

selection, training, and supervision. 59 V.I. at 909. But

because as to those claims—as opposed to other kinds of

potential claims against the department or the individual

officer—the notice alleged only that the department had

“employed” the officer at the time of the shooting, the court

deemed it insufficient because it contained no “reference . . .

to the allegedly negligent actions of the Government.” Id. at

911. If that sounds familiar, it should: The District Court here

likewise found the Family’s notice insufficient as to the

claims for negligent hiring, retention, and supervision and

dismissed them. See supra note 5. But here, unlike in Brunn,

the Family also brought claims against the individual official,

and the factual allegations it makes in support of those

claims—and thus in support of the vicarious liability that

32

Appellants fare no better with their contention that the

District Court erred in finding that the Family filed a timely

claim. The VITCA requires that a plaintiff, after filing her

notice, file a “claim” within two years after the claim accrued,

V.I. Code Ann. tit. 33, § 3409(c), which must include, in

addition to the information required by the notice, the “items

of damage of injuries claimed to have been sustained and the

total sum claimed,” id. § 3410. So what is the alleged

deficiency in the Family’s claim? According to Appellants,

the Family did not file one, because “a [c]omplaint is not the

same thing as a ‘claim’ under the VITCA,” Reply Br. 15, and

“[p]lenty of case law says that,” Oral Arg. at 38.14–.24,

http://www2.ca3.uscourts.gov/oralargument/audio/17-

2255_Russellv. SuperiorCourtVI.mp3.

This appears yet another misstatement to this Court.

As our precedent makes clear, “where a complaint is timely

filed under the [VITCA] with the proper parties having been

served and contains all of the necessary substantive

requirements . . . [,] the complaint suffices as a ‘claim.’”

Albert v. Abramson’s Enters., Inc., 790 F.2d 380, 383 (3d Cir.

1986), as amended (May 23, 1986).16 Appellants, however,

direct us to Gonzalez v. Stevens, No. 82-191, 1983 WL

would extend to the Virgin Island Superior Court under the

VITCA, see Bonelli, 2015 WL 1407259, at *5; supra note

5—render the notice sufficient.

16

Appellants inaccurately cite Albert for the

proposition that generally a notice of intent does not

constitute a claim.

33

889445, at *2 & n.2 (D.V.I. Mar. 22, 1983), and Mercer v.

Government of Virgin Islands, 18 V.I. 171, 174 n.1, 179–80

(Terr. Ct. 1982)—cases that not only do not bind us and pre-

date Albert, but also cannot bear the weight Appellants place

on them. Gonzalez distinguished a claim from a complaint

only to make clear that a claim “need not” have the

“particularity required of a civil complaint,” 1983 WL

889445, at *2, and Mercer actually rested its analysis on the

assumption that a complaint could be “considered to be a

‘claim,’” 18 V.I. at 179.

In short, Albert controls, and the claim filed by the

Family, like the notice of intent, complied with the VITCA.17

We will therefore affirm the District Court’s decision denying

Appellants sovereign immunity in all respects but one: The

complaint included a claim for gross negligence, but, as the

Family conceded at oral argument, the VITCA provides that

its waiver “shall not apply if the injury . . . is caused by the

gross negligence of an employee of the Government.” V.I.

Code Ann. tit. 33, § 3408(b). Although the District Court

declined to entertain this argument because it was not raised

by the Superior Court until its reply brief below, the “terms of

the [Virgin Islands’ waiver of sovereign immunity] are

jurisdictional” and therefore “may not be waived.”

Richardson, 744 F.2d at 1010. Thus, the gross negligence

claim should have been dismissed.

17

The Family’s complaint met all the requirements of

Albert, and Appellants do not contend otherwise.

34

IV. Conclusion

For the foregoing reasons, we will affirm the order of

the District Court, except as to gross negligence, and will

remand for proceedings consistent with this opinion.

35