Elkins v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2011 Decided August 10, 2012

No. 10-7060

LAURA ELKINS AND JOHN ROBBINS,

APPELLANTS/CROSS-APPELLEES

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES/CROSS-APPELLANTS

Consolidated with No. 10-7069

Appeals from the United States District Court

for the District of Columbia

(No. 1:04-cv-00480)

Roger J. Marzulla argued the cause for appellants/cross-

appellees. With him on the briefs was Nancie G. Marzulla.

Stacy Anderson, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellees/cross-appellants. With her on the briefs

were Irvin B. Nathan, Attorney General, Todd S. Kim,

Solicitor General, and Donna M. Murasky, Deputy Solicitor.

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,

Circuit Judges.

2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Laura Elkins and her husband

John Robbins brought suit against the District of Columbia

and some of its officials alleging violations of the Fourth and

Fifth Amendments. For the reasons set forth below, we

conclude that the District and its officials were entitled to

summary judgment on all the plaintiffs’ claims.

I

In 2001, Laura Elkins 1 decided to renovate her home in

Northeast Washington, D.C. Because the house is in the

Capitol Hill Historic District, Elkins needed building permits

from the District’s Department of Consumer and Regulatory

Affairs (DCRA), which regulates building construction in the

District, and the Historic Preservation Office (HPO), which is

charged with protecting the city’s historic structures. Elkins

obtained permits, but once construction began her neighbors

complained. In March 2002, one of them sued Elkins and the

District in D.C. Superior Court seeking to halt the renovation.

The court dismissed the suit, concluding that the permits were

valid. In doing so, the court relied largely on testimony from a

DCRA official.

Despite the court’s ruling, three other District officials,

Denzil Noble, Acting Administrator of the Building and Land

Regulation Administration within the DCRA, his predecessor

J. Gregory Love, and David Maloney, Acting Director of

1

Throughout this litigation, the parties have referred to Elkins

and Robbins collectively as Elkins. We adopt that convention as

well.

3

HPO, still questioned whether the permits were valid and

suspected that the construction exceeded their scope. Largely

due to their concerns, the District issued four stop work

orders 2 and several times requested that Elkins submit revised

building plans to reflect the work being done. Elkins

disregarded the orders and refused to submit any revised

plans. On May 16, 2002, Love, with Maloney and Noble

present, instructed Vincent Ford, DCRA’s chief building

inspector, to “‘find a way’ to stop work” at Elkins’s home.

Ford Decl. ¶ 20. The next day, Ford issued Elkins a notice of

violation of a stop work order. See D.C. MUN. REGS. tit. 12A,

§ 113.2. Elkins and the District officials continued to clash

over the type of permits and building plans necessary to

authorize continued construction for several months. On

March 10, 2003, Noble sent a letter requesting an on-site

inspection, but Elkins refused. In response, DCRA sought

from Superior Court an administrative search warrant to

inspect Elkins’s home for evidence of illegal construction.

Noble signed the affidavit in support of the warrant. The

affidavit set forth the grounds for DCRA’s belief that Elkins’s

renovations exceeded the scope of the permits and continued

despite orders that they stop, all in violation of the D.C.

Construction Codes. The Superior Court issued the warrant on

March 26, 2003, authorizing a search at Elkins’s address for

“unlicensed construction work which is in violation of the

Construction Codes.” The warrant said nothing about items to

be seized.

2

A stop work order, which does what its name implies, may

issue if “work on any building, structure or premises is being

performed contrary to the provisions of the Construction Codes, or

the Zoning Regulations or in an unsafe or dangerous manner.” D.C.

MUN. REGS. tit. 12A, § 114.1. Work beyond the scope of a permit

violates the Construction Codes.

4

The next day officers from the Metropolitan Police

Department (MPD) and officials from DCRA and HPO

executed the warrant. The DCRA and HPO officials had no

training in executing a search warrant. In fact, neither agency

had ever conducted a search. After entering Elkins’s home, an

MPD officer announced they had the right to seize all papers

related to the renovation. With that, the party searched the

entire home, looking for documents and rummaging through

closets, drawers, and boxes. The search included the

bedrooms of Elkins’s two sick children who were home from

school. Elkins v. District of Columbia (Elkins I), 527 F. Supp.

2d 36, 41 (D.D.C. 2007). After vigorously protesting the fact

and nature of the search, Elkins produced a notebook

containing construction permits, drawings, invoices, and other

documents related to the renovations that Toni Williams-

Cherry, an HPO inspector assisting DCRA with the search,

took from her. The District returned the notebook to Elkins

three weeks later. Id. In December 2003, the District moved

to revoke Elkins’s building permits in proceedings before the

District’s Office of Administrative Hearings (OAH). Id.

In March 2004, while the OAH proceedings were

underway, Elkins brought this suit in federal district court

against the District, the Mayor, Love, Maloney, Noble, and

Williams-Cherry, alleging that the search of her home and the

seizure of her notebook violated the Fourth Amendment. She

also claimed that the defendants’ “outrageous” conduct

trampled her Fifth Amendment due process rights. Elkins

sought millions of dollars in compensatory and punitive

damages from each defendant under 42 U.S.C. § 1983. The

district court stayed the lawsuit pending the outcome of the

administrative proceedings.

In those proceedings, Elkins moved to suppress the

evidence obtained from the search of her home: documents

5

from her notebook, photos taken, and written accounts from

those present during the search. OAH allowed the use of the

photos and reports from the search, ruling the search warrant

valid because there was probable cause to believe the

construction was unauthorized. Pls.’ Mot. for Partial Summ. J.

Ex. 21 (OAH Order on Motion to Suppress), at 15, 22. But

OAH barred the use of the documents from the notebook

because the warrant said nothing about seizing them, or

anything else. Id. at 21-22. After three separate hearings held

over several months, OAH upheld the permits on March 20,

2007, id. Ex. 20 (OAH Final Ruling), at 45-46, in a ruling that

also concluded that Elkins and the District officials had acted

in good faith throughout despite charged accusations of

misconduct coming from both sides. Id. at 21 n.13.

Following the OAH decision, the district court took up

Elkins’s lawsuit again, addressing the parties’ dueling,

updated motions for summary judgment. On December 12,

2007, the district court agreed with the District that Elkins

was collaterally estopped from pursuing her substantive due

process claim because of OAH’s determination that the

District and its officials had acted in good faith. Elkins I, 527

F. Supp. 2d at 50. The district court likewise rejected Elkins’s

procedural due process claim, finding the OAH proceeding

was in fact wholly adequate. Id. at 48-49. Addressing Elkins’s

Fourth Amendment claims, the district court held that both

sides were collaterally estopped from relitigating OAH’s

determinations that the search was lawful and the seizure

unlawful. Id. at 46. The only issue remaining was which, if

any, of the defendants to hold liable for the unlawful seizure

of Elkins’s notebook. See id. at 51-52. Having dismissed the

Mayor from the suit (claims against the Mayor in his official

capacity are treated as claims against the District), the court

rejected the assertion of qualified immunity from the

6

remaining officials and ordered discovery on the issue of

liability. Id. at 51.

Following discovery, the defendants moved again for

summary judgment, arguing that none of them were liable for

the seizure of the notebook. The district court dismissed the

District because Elkins had not properly pled any theory on

which it could be held liable for the seizure, but denied the

motion with respect to the other defendants. Elkins v. District

of Columbia (Elkins II), 610 F. Supp. 2d 52, 58-59 (D.D.C.

2009). On a motion for reconsideration, the court later granted

judgment to Maloney, finding there was no evidence linking

him to the seizure. Elkins v. District of Columbia (Elkins III),

636 F. Supp. 2d 29, 33-35 (D.D.C. 2009). Elkins then filed

her own motion for reconsideration challenging Maloney’s

dismissal from the suit and the application of collateral

estoppel to her Fourth Amendment claim. The court rejected

the motion. Elkins v. District of Columbia (Elkins IV), 685 F.

Supp. 2d 1 (D.D.C. 2010).

Thus, on the eve of trial, all that remained of Elkins’s suit

were her claims that Love, Noble, and Williams-Cherry were

liable for the unlawful seizure of her notebook. To expedite a

final ruling and subsequent appeal, Elkins agreed not to

proceed to trial. Instead, preserving her right to appeal, she

asked the court to enter judgment in her favor against the

remaining defendants, but stipulated that she was entitled to

no more than nominal damages from each. See Elkins v.

District of Columbia (Elkins V), 710 F. Supp. 2d 53, 60

(D.D.C. 2010). Finally, in May 2010, the district court entered

judgment against Noble and Williams-Cherry and assessed

nominal damages of one dollar each, but dismissed Love from

the case, holding that although the evidence against him was

enough to get before a jury, it was insufficient, without a trial,

to establish his liability. Id. at 62, 65.

7

Both parties appealed and we assumed jurisdiction under

28 U.S.C. § 1291. Elkins seeks to reverse the district court’s

grants of summary judgment against her, which would allow

her Fourth and Fifth Amendment claims to go forward against

all of the defendants. Noble and Williams-Cherry seek to

reverse the district court’s grant of summary judgment against

them and ask for entry of summary judgment in their favor.

We review the district court’s grants of summary judgment de

novo. Tate v. District of Columbia, 627 F.3d 904, 908 (D.C.

Cir. 2010). Summary judgment may be granted when the

evidence, viewed in the light most favorable to the

nonmoving party, shows “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(a); see Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 255 (1986). Applying this

familiar standard, and for the reasons below, we grant the

defendants all requested relief.

II

Elkins argues that the district court erred in concluding

that the defendants did not abridge her Fifth Amendment

rights to procedural and substantive due process. Her

argument about procedure, however, suffers from a

fundamental flaw. To state a procedural due process claim, a

complaint must suggest “what sort of process is due.” Doe by

Fein v. District of Columbia, 93 F.3d 861, 869 (D.C. Cir.

1996) (“[O]ne [cannot] allege a procedural due process

violation without even suggesting what sort of process is

due . . . .”). Elkins’s complaint does not. The section of her

complaint titled “Deprivation of Property Without Due

Process” says nothing about the process she claims is due, but

alleges instead that the defendants “deliberately flout[ed]” the

law and “trammeled” Elkins’s property rights by engaging in

“outrageous” conduct. Compl. 6-9. Such allegations may

8

make out a claim for a breach of substantive due process, but

not a violation of procedural due process.

Elkins’s substantive due process claim rests on her

allegations that the stop work orders and search of her home

were made despite valid construction permits. We have

previously held that individuals have a protected property

interest in building permits issued by the District. See 3883

Connecticut LLC v. District of Columbia, 336 F.3d 1068,

1073 (D.C. Cir. 2003). Yet “[o]nce a property interest is

found, . . . the doctrine of substantive due process constrains

only egregious government misconduct.” George Wash. Univ.

v. District of Columbia, 318 F.3d 203, 209 (D.C. Cir. 2003).

The “plaintiff must at least show that state officials are guilty

of grave unfairness,” which requires demonstrating either “a

substantial infringement of state law prompted by personal or

group animus, or a deliberate flouting of the law that

trammels significant personal or property rights.” Silverman

v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988). By contrast,

“[i]nadvertent errors, honest mistakes, agency confusion, even

negligence in the performance of official duties, do not

warrant redress.” Id.

Elkins asserts that the defendants knew there was no legal

or factual basis to stop her renovations, pointing to the

decisive testimony of District officials in Superior Court that

the permits were validly issued. But that testimony, credited

as it was by the court, tells only part of the story. OAH later

found that the officials who tried to stop the renovation did so

with a good faith belief that the construction exceeded the

scope of the permits and was inconsistent with the historic

character of the neighborhood. Pls.’ Mot. for Partial Summ. J.

Ex. 20 (OAH Final Ruling), at 21 n.13. The fact that the

initial permits were valid does not mean that later

interventions based on well-founded doubts about the scope

9

of the actual construction are gravely unfair. Moreover, Elkins

does not dispute that she violated one of the permits, a

concession that flatly contradicts her argument that any effort

to stop the construction was gravely unfair. Id. at 46. And

although OAH found that District officials “dueled amongst

themselves” and “sent out mixed messages,” id. at 44, this at

most shows “agency confusion,” not the “grave unfairness”

required for a substantive due process claim.

Elkins also cannot use the search of her home or the

seizure of documents as grounds for a claim under the Fifth

Amendment, but for a different reason. “Where a particular

Amendment ‘provides an explicit textual source of

constitutional protection’ against a particular sort of

government behavior, ‘that Amendment, not the more

generalized notion of “substantive due process,” must be the

guide for analyzing these claims.’” Albright v. Oliver, 510

U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S.

386, 395 (1989)). The remedy for any harm to Elkins from the

search of her home is governed by the Fourth Amendment, to

which we now turn.

III

Elkins maintains that the failure of the warrant to identify

items to be seized made not only the seizure of her notebook

unlawful, but also rendered the entire warrant, and thus the

search itself, invalid. When Elkins first raised this argument

below, the district court held that she could not challenge the

legality of the search because OAH had already ruled it

lawful. Elkins I, 527 F. Supp. 2d at 46. To Elkins’s

subsequent assertion that a “manifestly erroneous” ruling is

not entitled to preclusive effect, the district court replied that,

far from being “manifestly erroneous,” the OAH decision was

10

correct. Elkins IV, 685 F. Supp. 2d at 4-5. We agree and thus

need not consider whether collateral estoppel should apply.

The Fourth Amendment provides, in relevant part: “[N]o

Warrants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” U.S.

CONST. amend. IV. Not only must warrants be based on

probable cause, but “the scope of the authorized search [must

be] set out with particularity.” Kentucky v. King, 131 S. Ct.

1849, 1856 (2011); see also Massachusetts v. Sheppard, 468

U.S. 981, 988 n.5 (1984) (“[A] search conducted pursuant to a

warrant that fails to conform to the particularity requirement

of the Fourth Amendment is unconstitutional.”). Elkins argues

that the warrant used to search her home was void for lack of

particularity because it failed to identify any items to be

seized.

For this argument she relies entirely on Groh v. Ramirez,

540 U.S. 551 (2004). There the Supreme Court ruled a search

to seize firearms unlawful because the warrant described the

defendant’s home as the only “person or property” to be

seized and made no reference whatsoever to the firearms. Id.

at 554. The Court held that the warrant failed the particularity

requirement because it “provided no description of the type of

evidence sought.” Id. at 557. Because the warrant “did not

describe the items to be seized at all,” the Court concluded it

“was so obviously deficient that we must regard the search as

‘warrantless.’” Id. at 558. Elkins seizes upon this statement,

stressing that the warrant in this case also did not describe

items to be seized “at all.”

But Groh cannot mean that every search warrant that fails

to describe items to be seized is invalid. The requirements for

a warrant vary based on the purpose for which it is sought,

11

Michigan v. Clifford, 464 U.S. 287, 294-95 (1984) (plurality

opinion), and the purpose of the search determines the

requisite level of particularity, cf. Groh, 540 U.S. at 557

(finding the warrant invalid because it “provided no

description of the type of evidence sought”). Not all searches

have seizures in mind. For example, the law has long accepted

the use of search warrants to conduct “a routine inspection of

the physical condition of private property” in order to ensure

compliance with building codes, rather than to seize items.

See Camara v. Mun. Court of San Francisco, 387 U.S. 523,

530 (1967). It would make no sense to require a warrant to list

items to be seized when the sole purpose of the search is to

conduct an inspection, without seizing anything.

The Court followed these principles in Groh, holding the

search to seize firearms unlawful because the warrant said

nothing about them. See Groh, 540 U.S. at 563 (explaining

that the defendant could be held liable for the search because

he “did not have in his possession a warrant particularly

describing the things he intended to seize” (emphasis added)).

Here, the District officials sought only to gain entry to

Elkins’s home to see whether unlicensed construction work

was being performed. The warrant listed her address and

explained that the search was for “unlicensed construction

work which is in violation of the Construction Codes.” Defs.’

Mot. to Dismiss Ex. 10. There is no indication that the

officials envisioned seizing any documents when they sought

the warrant. Instead, as explained in more detail below, the

record shows the seizure of documents was a spur-of-the-

moment response to the instructions of an MPD officer made

during the search. See, e.g., Elkins Decl. ¶ 24; Noble Dep.

39:7-41:9, 101:15-104:16, June 10, 2008. Given this context,

the warrant’s language was sufficiently particular. An

administrative search warrant need not describe things to be

seized when none are meant to be seized. Of course, any

12

seizures made during the search that do not fall within an

exception to the warrant requirement are unconstitutional. But

such missteps do not render the entire search illegal.

IV

We agree with Elkins that the seizure of her notebook

was unlawful. The warrant requirements of the Fourth

Amendment are not mere formalities, but serve the “high

function” of shielding citizens’ private lives from all but

necessary and fully justified governmental intrusion.

McDonald v. United States, 335 U.S. 451, 455 (1948). And

their protective power is at its apex when government

officials contemplate a search within an individual’s home:

the right to be free from unreasonable governmental invasion

at home is at the Amendment’s “very core.” Silverman v.

United States, 365 U.S. 505, 511 (1961). Within this highly

protective framework, the particularity requirement serves an

especially vital role. “[H]istory shows that the police acting

on their own cannot be trusted,” McDonald, 335 U.S. at 456,

and the backdrop of the particularity requirement’s adoption,

the general search warrant, is powerful reminder of this truth.

As James Otis declared, such warrants were “the worst

instrument[s] of arbitrary power, the most destructive of

English liberty and the fundamental principles of law, that

ever [were] found in an English law book.” Boyd v. United

States, 116 U.S. 616, 625 (1886) (citation and internal

quotation marks omitted). In response, the Fourth

Amendment demands that the government articulate a

sufficient need not only for a search, but for the specific

search to be executed, describing the particular place at issue

and leaving “nothing . . . to the discretion of the officer

executing the warrant” when it comes to what may be seized,

Marron v. United States, 275 U.S. 192, 195 (1927). The

seizure of Elkins’s notebook violated this fundamental

13

guarantee. The particularity requirement “prevents the seizure

of one thing under a warrant describing another,” id., much

more the seizure of anything when the warrant describes

nothing at all. The District cannot rely on a warrant

authorizing visual inspection of a place to justify seizing

documents in that place.

What remains is to determine whether the District or any

of the individual defendants can be held liable for the seizure

under 42 U.S.C. § 1983, which provides a remedy in damages

to those deprived of “any rights, privileges, or immunities

secured by the Constitution and laws” by persons acting under

color of state law or the law of the District of Columbia. Only

those who cause a violation of a right secured by the

Constitution are liable. Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009). Case law has established that a municipality can

be held liable only for constitutional violations committed

by an employee who acted according to a city “policy or

custom” that was “the moving force” behind the violation.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). And

for the District officials, Elkins must produce evidence “that

each [one], through the official’s own individual actions,

has violated the Constitution.” Iqbal, 556 U.S. at 676; see also

id. (“[V]icarious liability is inapplicable to . . . § 1983

suits . . . .”); Int’l Action Ctr. v. United States, 365 F.3d 20, 28

(D.C. Cir. 2004) (“[T]here can be no respondeat superior

liability under Section 1983.”).

A. The District

Elkins’s claim against the District fails because she did

not plead in the district court the theory on which she now

attempts to hold the District liable. Elkins alleged in her

complaint that it was District policy “to invade the privacy

and security of its residents without probable cause in order to

14

defeat their due process rights in building permit disputes.”

Compl. ¶ 11. The District challenged this allegation in its

motion for summary judgment, and Elkins failed to respond.

Rather, she shifted the ground of her argument, contending

for the first time that the District should be held liable instead

for failing to train and supervise employees in conducting

searches. See Pls.’ Opp’n to Defs.’ Mot. for Summ. J. 21. The

district court construed this new argument as a motion for

leave to amend the complaint, which it denied. Coming nearly

five years after the initial complaint and after discovery had

closed, “it [was] simply much too late to amend.” Elkins II,

610 F. Supp. 2d at 59.

We review denial of leave to amend a complaint for

abuse of discretion, Firestone v. Firestone, 76 F.3d 1205,

1208 (D.C. Cir. 1996), and find none here. Undue delay is a

valid reason to reject a party’s attempt to add a new theory of

liability to a complaint. Foman v. Davis, 371 U.S. 178, 182

(1962). On appeal, Elkins presses forward with her argument

that there was a lack of training and supervision and

completely disregards the district court’s finding that she

waited too long to advance this claim. The issue before us is

the denial of the leave to amend and not the merits of Elkins’s

new theory. Elkins makes no attempt to argue that the finding

of undue delay was made in error, and we see no reason to

think it was.

B. Maloney

The district court granted summary judgment to David

Maloney, finding that although he was a driving force in the

efforts to halt the renovations, he was not involved in the

decision to seize documents. Elkins III, 636 F. Supp. 2d at 33-

34. We agree. Elkins points to no evidence suggesting that

Maloney caused the seizure. Maloney works for HPO, which

15

was not responsible for the warrant and search; DCRA was.

Elkins claims Maloney directed Williams-Cherry to

participate in the search, but the evidence she identifies shows

only that Williams-Cherry told him that she would be

involved. That same evidence actually establishes that DCRA,

not HPO, directed her to participate in the search. Williams-

Cherry Dep. 79:2-80:16, Mar. 19, 2008. And Williams-Cherry

was clear in her testimony that Maloney had “nothing to do

with [the] search.” Id. at 80:7-8. Elkins argues that Maloney

could have seen that the warrant was inadequate on its face.

But there is no evidence that Maloney ever saw the warrant,

and even if he had, the warrant was not facially invalid. As we

have already discussed, there is nothing in the warrant even

suggesting that anything would be seized during the search.

Elkins also argues that Maloney should be held liable

because he failed to properly train and supervise Williams-

Cherry. The district court concluded that “mere allegation of a

supervisory role” was insufficient to establish liability, and in

any event the evidence could not show that his conduct was

sufficiently deficient to establish supervisory liability. Elkins

III, 636 F. Supp. 2d at 34. Supervisory liability is limited

under § 1983. The plaintiff must show that “a duty to instruct

the subordinate to prevent constitutional harm arose from the

surrounding circumstances.” Haynesworth v. Miller, 820 F.2d

1245, 1262 (D.C. Cir. 1987). Even if Maloney did have a

responsibility to train and supervise Williams-Cherry, which

he disputes, summary judgment in his favor was still

appropriate because the record shows, at best, “mere

negligence,” not an “affirmative link” between Maloney’s

conduct and the constitutional injury. Id. at 1260. This link

must be strong enough that, from Maloney’s perspective, the

possibility of a constitutional violation occurring due to poor

training or supervision would have been highly likely, not

simply foreseeable. Id. at 1261. Supervisory liability under

16

§ 1983 is triggered only when a supervisor fails to provide

more stringent training in the wake of a history of past

transgressions by the agency or provides training “so clearly

deficient that some deprivation of rights will inevitably result

absent additional instruction.” Int’l Action Ctr., 365 F.3d at 27

(quoting Haynesworth, 820 F.2d at 1261-62) (internal

quotation mark omitted). There was no pattern of

constitutional violations to put Maloney on notice that

training was required; indeed, this was the first search warrant

DCRA had ever sought. And even if it was foreseeable that an

untrained official might take a false step in these new and

unfamiliar circumstances, such a result was by no means

inevitable, especially as the search was led by officers from

the MPD, who are trained in the proper execution of a

warrant.

C. Love

J. Gregory Love was the Administrator of the DCRA

Building and Land Regulation Administration until his

retirement in November 2002. The district court denied

Elkins’s motion for summary judgment against Love, finding

there were factual disputes about his connection to the seizure

of the notebook. But when Elkins agreed not to proceed to

trial, the district court dismissed her claim against Love:

Elkins had presented enough evidence to get to a jury, but not

enough for judgment in her favor as a matter of law. Elkins V,

710 F. Supp. 2d at 62. On appeal, Elkins argues that the

district court erred in denying her motion for summary

judgment against Love, relying entirely, as did the district

court, on two pieces of evidence: Love’s May 2002

instruction to Vincent Ford, DCRA’s chief building inspector,

to “find a way” to stop the work at Elkins’s home, and an

October 2002 email the District’s counsel sent to Love and

others asking about next steps for enforcement actions against

17

Elkins. See id. Neither connects Love to a decision to seize

documents or even to seek a search warrant, and there is no

other evidence to contradict Love’s testimony that he was not

involved in either of those decisions. See Haynes v. Williams,

392 F.3d 478 (D.C. Cir. 2004) (“The possibility that a jury

might speculate in the plaintiff’s favor is insufficient to defeat

summary judgment.”). Indeed, Love retired four months

before the warrant was even sought. If the court erred it was

by failing to grant summary judgment to Love. There was no

error in denying summary judgment against him and, instead,

dismissing him from the case.

D. Noble

Denzil Noble succeeded Love and was Acting

Administrator at the time of the search. The district court

granted Elkins summary judgment against Noble, relying on

three pieces of evidence. Elkins V, 710 F.2d at 64. None,

however, shows he caused the seizure of documents. The

district court first noted that Noble signed the application for

the search warrant, id., but that alone cannot implicate him in

a seizure neither sought in the application nor authorized in

the warrant. Next, the court emphasized that a draft of an

affidavit supporting the application did ask for authority to

seize documents. Id. But there is no evidence Noble ever saw

the draft, and, of course, it was only a draft. The version of

the affidavit filed in support of the warrant said nothing about

a seizure. Finally, the court relied on a single statement by

Noble in his deposition that seizing documents was a purpose

of the search. Id. But the deposition transcript shows that

Noble immediately corrected himself on this point. Noble

Dep. 62:6-64:19. He testified repeatedly throughout the

deposition that he thought the warrant would be used only to

conduct a visual inspection, not to seize documents, and that

he was “surprised” to learn later that documents had been

18

taken. Id. at 39:7-41:9, 101:15-104:16. Consistent with that

testimony, there is simply no evidence that Noble ever spoke

with anyone on the search team about the search. Id. at 41:1-

9, 105:9-11.

Elkins argues that Noble’s efforts to stop the renovations

make him somehow liable for the seizure. But the stop work

orders and the requests to inspect the construction at her home

have no bearing on whether Noble caused documents to be

improperly seized. There is no evidence that Noble said or did

anything over the course of these events that caused members

of the search team to take documents, rather than conduct a

visual search alone. Not only was Elkins not entitled to

summary judgment against Noble, but we conclude that no

reasonable juror could conclude that any act by Noble caused

the unlawful seizure. We reverse the district court’s

determination and order that summary judgment be entered in

Noble’s favor.

E. Williams-Cherry

There is no question that Williams-Cherry’s “own

individual actions,” Iqbal, 556 U.S. at 676, were instrumental

to the seizure: She took the notebook from Elkins. Williams-

Cherry argues that she is nonetheless entitled to summary

judgment on the grounds of qualified immunity. Elkins

responds that this argument is waived because Williams-

Cherry failed to raise it before the district court. Appellants’

Reply Br. 32; see also District of Columbia v. Air Fla., Inc.,

750 F.2d 1077, 1084 (D.C. Cir. 1984) (“It is well settled that

issues and legal theories not asserted at the District Court

level ordinarily will not be heard on appeal.”). But the

defendants raised a qualified immunity defense in three

separate motions, Defs.’ Mot. to Dismiss 37-40, ECF No. 7;

Defs.’ Updated Mot. for Summ. J. 30-33, ECF No. 43; Defs.’

19

Opp’n to Pls.’ Mot. for Recons. 8-9, ECF No. 105, and the

district court ruled on the issue in its first opinion in the case,

Elkins I, 527 F. Supp. 2d at 51 (“Qualified immunity does not

shield the individual Defendants from liability on Plaintiffs’

Fourth Amendment claim.”). We must therefore consider the

merits of Williams-Cherry’s defense when reviewing the

district court’s grant of summary judgment against her.

Qualified immunity protects government officials “from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Under this standard,

“[t]he relevant, dispositive inquiry . . . is whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Saucier v. Katz, 533 U.S. 194,

202 (2001); see also id. at 206 (explaining that the doctrine

ensures “that before they are subjected to suit, officers are on

notice their conduct is unlawful”). The doctrine “gives

government officials breathing room to make reasonable but

mistaken judgments,” and “protects ‘all but the plainly

incompetent or those who knowingly violate the law.’”

Aschroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). The district

court denied Williams-Cherry qualified immunity on the

ground that it has long been clearly established that seizing

items based on a warrant that does not authorize such seizure

is unconstitutional. In doing so, the district court misapplied

the “clearly established” inquiry. That Elkins’s rights were

clearly violated does not mean Williams-Cherry clearly

should have known she was violating them. The appropriate

question for us to ask is whether it would have been clear to a

reasonable official in Williams-Cherry’s situation that seizing

Elkins’s notebook was unlawful.

20

Williams-Cherry was one of several people who carried

out the search, including MDP officers and officials from

DCRA and HPO. The MPD officers led the search along with

DCRA employee Juan Scott, one of Williams-Cherry’s

supervisors, 3 who provided primary oversight of the agency

officials. Williams-Cherry was never given a copy of the

warrant. She was not shown the warrant. Scott had the

warrant in hand when he and the other agency officials

arrived first at the home. When MPD officers arrived, Scott

gave the warrant to them. According to Elkins, no one

searched for any documents until an MPD officer announced

that they had the right to do so. Elkins Decl. ¶ 24; see also

Elkins Dep. 37:14-38:18 (explaining that seizures began after

an MPD officer gave “permission”). After the search began,

Scott told Williams-Cherry, who was taking pictures of the

outside of the house, to come inside and photograph its

interior. Inside, Williams-Cherry saw officials searching

through drawers. She asked Scott if that was allowed. Scott

conferred with an MPD officer within earshot of Williams-

Cherry, and the officer said again that anything related to

construction, including documents, could be seized. When

Elkins produced the notebook Williams-Cherry, who was

standing nearby, took it from her.

We do not think it would be clear to “a reasonable

officer . . . in the situation [Williams-Cherry] confronted” that

taking the notebook from Elkins was a violation of the Fourth

Amendment. Saucier, 533 U.S. at 202. Williams-Cherry was

but a junior member of the search team present to take

pictures in an inspection led by police and her superiors.

3

Although Williams-Cherry is an HPO inspector, she was also

a contract worker for DCRA at the time of the search. Elkins I, 527

F. Supp. 2d at 41. As the search was DCRA’s operation, not

HPO’s, Scott was her supervisor for purposes of the search.

21

Before taking the notebook from Elkins, Williams-Cherry

asked her superiors about the permissible scope of the search

and relied upon the judgment of her supervisor and the police

officer in charge. We do not find any one of these factors

dispositive, but viewing them together, we conclude that

Williams-Cherry’s actions, though mistaken, were not

unreasonable. Pearson v. Callahan, 555 U.S. 223, 244 (2009)

(“The principles of qualified immunity shield an officer from

personal liability when an officer reasonably believes that his

or her conduct complies with the law.”).

Several other circuits have addressed the reasonableness

of an inferior officer’s reliance upon the conclusions of a

superior and reached similar outcomes. In the underlying

Groh case, the Ninth Circuit addressed an almost identical

situation and held that “[w]hat’s reasonable for a particular

officer depends on his role in the search.” Ramirez v. Butte-

Silver Bow Cnty., 298 F.3d 1022, 1027 (9th Cir. 2002), aff’d

sub nom., Groh v. Ramirez, 540 U.S. 551 (2004). The court

explained that although those who lead the team must read the

warrant and assure themselves of its sufficiency,

Line officers, on the other hand, are required to do much

less. They do not have to actually read or even see the

warrant; they may accept the word of their superiors that

they have a warrant and that it is valid. So long as they

make inquiry as to the nature and scope of the warrant,

their reliance on leaders’ representations about it is

reasonable. . . . Because they were not required to read

the warrant, the line officers conducting this search

cannot reasonably have been expected to know that it was

defective.

Id. at 1028 (citations, alterations, and internal quotation marks

omitted). The First Circuit has similarly held that an official

22

“may reasonably rely on a fellow officer or agent who does

(or by position should) know the substantive law and the facts

and who (based on that knowledge) asserts” that some action

is lawful. Liu v. Phillips, 234 F.3d 55, 57 (1st Cir. 2000); see

also id. at 58 (“In the few pertinent cases we could find,

officers who reasonably relied on superior officers have been

held to be entitled to qualified immunity even if the officer

who gave the direction acted on a misapprehension as to the

law.”); Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1260

(10th Cir. 1998) (“[A] police officer who acts ‘in reliance on

what proves to be the flawed conclusions of a fellow police

officer’ may nonetheless be entitled to qualified immunity as

long as the officer’s reliance was ‘objectively reasonable.’”

(quoting Rogers v. Powell, 120 F.3d 446, 455 (3d Cir.

1997))); cf. KRL v. Estate of Moore, 512 F.3d 1184, 1192-93

(9th Cir. 2008) (distinguishing Ramirez on the ground that the

line officers there, like Williams-Cherry here, did not play a

key role in the overall investigation). Whether an official’s

reliance is reasonable will always turn on several factors, but

there is no basis in this record to find that Williams-Cherry’s

was not. She is entitled to summary judgment based on

qualified immunity.

V

For the foregoing reasons, the district court’s orders are

affirmed in all respects except that the entries of summary

judgment against Noble and Williams-Cherry are vacated and

the case remanded with instructions to enter judgment in their

favor.

So ordered.