The opinion
O’MALLEY, Circuit Judge,
dissenting:
Because the district court’s order conflates the mere existence of a lawful basis with whether a defendant seeking qualified immunity was actually motivated by that lawful basis, and today’s opinion affirms that error, I must respectfully dissent.
It is well-established under Eleventh Circuit law that, to find a lack of causation for purposes of qualified immunity, “it is not sufficient for [a defendant] to establish that there exists a lawful basis.” Stanley v. City of Dalton, 219 F.3d 1280, 1296 (11th Cir. 2000). “Rather, in order for the Foy analysis to apply, [the defendant] himself must have been actually motivated, at least in part, by that lawful basis.” Id. (emphasis added).
This question of actual motivation is a “fact and circumstances”-specific inquiry, not appropriately decided at the motion to dismiss stage. Foy v. Holston, 94 F.3d 1528, 1534-35 (11th Cir. 1996) (‘Where the facts assumed for summary judgment purposes ... show mixed motives ... the defendant is entitled to immunity.”) (emphasis added); see also Stanley, 219 F.3d at 1296 (noting that “the record” must “undisputably establish[] that the defendant in fact was motivated, at least in part, *594 by lawful considerations” for Foy to apply); see generally Bogle v. McClure, 332 F.3d 1347, 1356 (11th Cir. 2003) (finding a lack of “record evidence” to “indicate that [defendants] were in fact motivated, at least in part, by objectively valid reasons”); Jackson v. Humphrey, 776 F.3d 1232, 1240 (11th Cir. 2015) (relying on “the record presented at summary judgment” to find that defendants were motivated, “at least in part,” by “a lawful reason”).
The cases on which the majority relies to affirm the district court’s reasoning only serve to highlight this point; each case involved a factual record developed well past the point of discovery. See Foy, 94 F.3d at 1531 (decided on appeal from a denial of summary judgment); Jackson, 776 F.3d at 1234 (decided on appeal from a grant of summary judgment); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 276 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977) (decided on appeal from a bench trial). Despite this clear line of precedent, today’s opinion amends Foy, broadening its holding to encompass motions to dismiss for the first time.
Absent a fully developed record, the majority can point only to the November 5th letter, and its references to the § 741.212 law, to find both existence and actual motivation vis-á-vis lawful motive. If this case were before us from a grant of summary judgment, and the Wall-DeSousas had failed to provide any evidence rebutting the letter, that finding would be reasonable. But where the Wall-DeSousas have not been afforded the opportunity for discovery, it is premature to fault them for failing to provide evidence showing solely illicit intent on the part of the defendants.
Reading Foy broadly would effectively immunize all defendants who luck into lawful post-hoc explanations for otherwise illegally-motivated behavior. Even where flagrant smoking guns exist, plaintiffs will never be able to discover them. And where, by sheer providence, the plaintiffs already have a smoking gun in hand, how can they use it to rebut a motion to dismiss if its contents are disputed? See Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007).
I acknowledge wholeheartedly that the Wall-DeSousas’ complaint is not a model of clarity, replacing concrete and particularized allegations with conclusory generalities. Had the district court rejected them complaint as failing outright to provide “sufficient factual matter” to satisfy the straightforward requirements of Iqbal and Twombly, I would have few qualms in affirming. Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007). By relying instead on Foy, the district court’s analysis begins a dangerous practice, which today’s opinion ratifies. I respectfully dissent.