Marglli Gallego v. Ivette Perez

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13212

____________________

MARGLLI GALLEGO,

Plaintiff-Appellee,

versus

IVETTE PEREZ,

CARLOS LUFFI,

Defendants-Appellants,

RICKY GARCIA, et al.,

Defendants.

____________________

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2 Opinion of the Court 21-13212

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-24374-BB

____________________

Before BRANCH and LUCK, Circuit Judges, and ANTOON, * District

Judge.

LUCK, Circuit Judge:

Marglli Gallego brought this 42 U.S.C. section 1983 action

against four police officers. She alleged that two of those offic-

ers—whom we’ll call the “off-duty officers”—unreasonably seized

her in violation of the Fourth Amendment. And she alleged that

the other two officers—Sergeant Carlos Luffi and Officer Ivette Pe-

rez—instigated and participated in the seizure in violation of the

Fourth Amendment.

Sergeant Luffi and Officer Perez moved to dismiss the claims

against them based on qualified immunity, but the district court

denied their motion. It concluded that Gallego sufficiently al-

leged in the second amended complaint that Sergeant Luffi and Of-

ficer Perez violated the Fourth Amendment by participating in a

causeless seizure and the violations were clearly established. We

disagree on the last part. Because it was not clearly established

that Sergeant Luffi’s and Officer Perez’s alleged participation

*

The Honorable John Antoon II, United States District Judge for the Middle

District of Florida, sitting by designation.

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21-13212 Opinion of the Court 3

violated the Fourth Amendment, we reverse and remand for the

district court to dismiss the claims against them.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

During 2018, Gallego was the president of Hammocks Com-

munity Association, Inc., Florida’s largest homeowners associa-

1

tion. On March 6, 2018, the association held a board-member

election at its clubhouse. It retained the off-duty officers for secu-

rity and to keep out nonmembers. Sergeant Luffi (the off-duty

officers’ supervisor) and Officer Perez showed up at the clubhouse

about fifteen minutes before voting ended. Sergeant Luffi and

Officer Perez were no strangers to Gallego and the association.

They had been investigating Gallego for several years, telling prop-

erty owners, vendors, and contractors that she was stealing the as-

sociation’s money.

When Sergeant Luffi and Officer Perez arrived, they talked

to the off-duty officers near the clubhouse’s front door for ten to

fifteen minutes. Sergeant Luffi and Officer Perez told one off-

duty officer that “they were going to arrest Mrs. Gallego.” All

four officers then entered the clubhouse together. But the asso-

ciation’s property manager and Gallego told Sergeant Luffi and Of-

ficer Perez that they had to leave because they weren’t Hammocks

members.

1

The facts come from the second amended complaint and are accepted as

true. See St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).

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4 Opinion of the Court 21-13212

Sergeant Luffi and Officer Perez ignored those instructions

and continuously demanded to take the election ballots. Gallego

“told Sergeant Luffi that he must be a relative of someone who

d[id] not want her to be on the [b]oard.” That prompted Officer

Perez to “interject[]” and say, “How do you know that? Why did

you say that? . . . I can’t wait to put you in a chair and ask you ques-

tions.” As Gallego began responding that Officer Perez couldn’t

question her because she had a lawyer, one of the off-duty officers

“immediately pushed [her] away,” telling her to sit in a chair and

to not move.

Gallego complied and sat down. After she did, the off-duty

officers “sandwich[ed]” her by sitting in the adjacent chairs. The

off-duty officers kept Gallego sandwiched in the chair for four and

a half hours. During that time, Sergeant Luffi lifted his shirt to

“flash[] his handcuffs” in Gallego’s direction “numerous times.”

Officer Perez, for her part, “came over multiple times and

told . . . Gallego, ‘I’m going to be able to ask you questions!’” It

was only after Sergeant Luffi and Officer Perez left the clubhouse

that the off-duty officers let Gallego out of the chair.

Gallego brought this section 1983 action against the four of-

ficers. She alleged that the off-duty officers unreasonably seized

her without cause in violation of the Fourth Amendment. And

she alleged a different Fourth Amendment theory against Sergeant

Luffi and Officer Perez—that, although they were non-seizing of-

ficers, their “instigation and[] participation in the events on March

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21-13212 Opinion of the Court 5

6, 2018 caused or contributed to the prolonged stop and deten-

tion.”

The off-duty officers answered Gallego’s complaint, but Ser-

geant Luffi and Officer Perez moved to dismiss the claims against

them based on qualified immunity. The district court denied

their motion. It acknowledged that Gallego’s complaint alleged

“novel facts.” But, the district court concluded, Sergeant Luffi

and Officer Perez weren’t entitled to qualified immunity because

the off-duty officers unlawfully seized Gallego, there was “some

participation” by Sergeant Luffi and Officer Perez, and our deci-

sions in Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999), and Jordan

v. Mosley, 487 F.3d 1350 (11th Cir. 2007), clearly established “that a

participant in an arrest, even if not the arresting officer, may be li-

able if the officer knew that the arrest lacked any constitutional ba-

sis and participated in some way.”

Sergeant Luffi and Officer Perez appeal the district court’s

denial of qualified immunity.

STANDARD OF REVIEW

We review de novo a district court’s “denial of a motion to

dismiss . . . on qualified immunity grounds.” Long v. Slaton, 508

F.3d 576, 579 (11th Cir. 2007).

DISCUSSION

“Qualified immunity shields public officials from liability for

civil damages when their conduct does not violate a constitutional

right that was clearly established at the time of the challenged

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6 Opinion of the Court 21-13212

action.” Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019)

(quoting Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016)). An

official seeking dismissal based on qualified immunity “must first

establish that he was acting within the scope of his discretionary

authority when the alleged wrongful act occurred.” Id. If he

does, then the burden “shifts to the plaintiff to overcome the offi-

cial’s qualified immunity.” Id. (citing Mikko v. City of Atlanta, 857

F.3d 1136, 1144 (11th Cir. 2017)).

There is no dispute that Sergeant Luffi’s and Officer Perez’s

challenged conduct was within their discretionary authority.

Thus, it was Gallego’s burden to overcome qualified immunity.

See id. That required her to establish that (1) the officers “violated

a federal statutory or constitutional right” and (2) “the unlawful-

ness of their conduct was ‘clearly established at the time.’” Dist.

of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (citation omitted).

We “have discretion to decide which of the two prongs . . . to

tackle first,” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Pear-

son v. Callahan, 555 U.S. 223, 236 (2009)), because “it is not neces-

sary to decide both prongs [if] it is plain that the right [wa]s not

clearly established,” Wilson v. Sec’y, Dep’t of Corr., 54 F.4th 652, 660

(11th Cir. 2022).

“Clearly established” means that the law, at the time of the

challenged conduct, “was sufficiently clear that every reasonable

official would understand that what he is doing is unlawful.”

Wesby, 583 U.S. at 63 (marks and citation omitted). There are

three ways to show the law was sufficiently clear: first, by

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“point[ing] . . . to a ‘materially similar case’”; second, by showing

there is “a broader, clearly established principle that should control

the novel facts of the situation”; and third, by showing the chal-

lenged conduct “so obviously violate[d] the [C]onstitution that

prior case law [wa]s unnecessary.” Echols, 913 F.3d at 1324 (cita-

tions omitted). “[I]f a plaintiff cannot show that the law at issue

was clearly established under the first . . . method, that usually

means qualified immunity is appropriate.” King v. Pridmore, 961

F.3d 1135, 1146 (11th Cir. 2020) (citing Corbitt v. Vickers, 929 F.3d

1304, 1312 (11th Cir. 2019) (“[I]f case law, in factual terms, has not

staked out a bright line, qualified immunity almost always protects

the defendant.” (citation omitted))).

Here, Gallego alleged that Sergeant Luffi and Officer Pe-

rez—as non-seizing officers—are liable because their “instigation

and[] participation in the events on March 6, 2018 caused or con-

tributed to” the off-duty officers’ seizure. Both officers, according

to Gallego, caused the seizure by telling the off-duty officers “they

were going to arrest Mrs. Gallego” and by refusing to leave the

clubhouse. She also alleged that Sergeant Luffi, specifically,

flashed his handcuffs “numerous times,” and that Officer Perez told

Gallego “multiple times” that she wanted to question Gallego.

But Gallego has not shown it was clearly established in March 2018

that any of this conduct violated the Fourth Amendment.

First, as Gallego correctly conceded during oral argument,

there is no “materially similar” case placing the Fourth Amend-

ment question “beyond debate.” Echols, 913 F.3d at 1324

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8 Opinion of the Court 21-13212

(citations omitted). The closest is our decision in Jones, but it’s

not close enough.

In Jones, we concluded a reasonable jury could find the non-

seizing officer “participated” in another officer’s warrantless arrest

because he “stayed with [the plaintiff] while [the arresting officer]

called the state’s attorney about probable cause,” “was present dur-

ing the [plaintiff’s] interview,” “took notes” that were used in the

arrest report, “reviewed the report for accuracy,” and, “[m]ore im-

portantly, . . . transported [the plaintiff] to jail” with the arresting

officer. 174 F.3d at 1277–78, 1284; see also Wilkerson v. Seymour,

736 F.3d 974, 980 (11th Cir. 2013) (emphasizing that “the non-ar-

resting officer [in Jones] participated in the transportation, arrest,

and report”). Sergeant Luffi’s and Officer Perez’s involvement in

the off-duty officers’ seizure was materially different. They did

not guard Gallego for an arresting officer, they did not escort her

2

to jail, and they did not help complete an arrest report.

Second, there is no broader, clearly established principle that

controls the novel facts of this case. A broad principle clearly es-

tablishes the law only if it “do[es] so ‘with obvious clarity[,]’ to the

point that every objectively reasonable government official facing

the circumstances would know that [his] conduct did violate

2

Jordan is even further off the mark. There, we concluded the non-seizing

officer was immune because the arrest was supported by probable cause. Jor-

dan, 487 F.3d at 1354–57. We did not address whether, absent probable

cause, he sufficiently participated in the arrest. See id.

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21-13212 Opinion of the Court 9

federal law when [he] acted.” Vinyard v. Wilson, 311 F.3d 1340,

1351 (11th Cir. 2002).

The district court concluded (and Gallego agrees) our cases

have adopted a broad principle that instigating or participating in

an unlawful seizure “in some way” violates the Fourth Amend-

ment, and that principle controlled the “novel facts” here because

there allegedly was at least “some participation” by Sergeant Luffi

and Officer Perez. Indeed, we have “made explicit . . . that a par-

ticipant in an arrest, even if not the arresting officer, may be liable

if he knew the arrest lacked any constitutional basis and yet partic-

ipated in some way.” Wilkerson, 736 F.3d at 980 (discussing Jones);

see also Jordan, 487 F.3d at 1354 (“In this Circuit, a non-arresting of-

ficer who instigates or causes an unlawful arrest can still be liable

under the Fourth Amendment.” (citing Rodriguez v. Ritchey, 539

F.2d 394, 400 (5th Cir. 1976))). But our generalized statements

that an officer “may” or “can” be liable if he participates “in some

way” did not clearly establish that Sergeant Luffi’s and Officer Pe-

rez’s conduct was unlawful. See Wilkerson, 736 F.3d at 980; Jordan,

487 F.3d at 1354; compare City of Tahlequah v. Bond, 595 U.S. 9, 13

(2021) (reasoning that the principle “deliberate or reckless presei-

zure conduct can render a later use of force excessive” was “much

too general” to clearly establish an excessive force violation (em-

phasis added)); Wesby, 583 U.S. at 63-64 (explaining that courts

“must not define clearly established law at a high level of generality

. . . especially . . . in the Fourth Amendment context”).

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10 Opinion of the Court 21-13212

Those statements did not make obvious how much instiga-

tion of an unlawful seizure, or participation in it, violates the

Fourth Amendment. That fact-intensive question must be an-

swered on a case-by-case, officer-by-officer basis. See Wilkerson,

736 F.3d at 979–80 (explaining that our “different holdings” in

Jones—that a non-arresting officer wasn’t immune as to an initial

arrest but was immune for prolonged detention after a probable

cause hearing—were “based . . . on both [his] degree of participa-

tion . . . and the amount of information available to [him]”); cf.

Vinyard, 311 F.3d at 1351 (cautioning that broad principles must be

untethered from particular facts to clearly establish the law for

novel facts). That’s because the causal connection between

“some” involvement and a seizure may be too remote to find a

Fourth Amendment violation. See Brown v. City of Huntsville, 608

F.3d 724, 737 (11th Cir. 2010) (concluding “the facts d[id] not show

personal participation” by two officers in arresting one plaintiff, alt-

hough one officer remarked “arrest [him] too” while arresting a co-

plaintiff); Rodriguez, 539 F.2d at 401–02 (concluding a federal agent

“did not cause or instigate [the plaintiff]’s arrest” where his “role

was limited to monitoring [a] wiretap” and his notes were given to

a different non-arresting agent); cf. Wilkerson, 736 F.3d at 980 (“as-

suming [without deciding] that [the defendant] sufficiently partici-

pated” (emphasis added)).

Because “some way” does not specify how much involve-

ment and engagement crosses the line from remote to a Fourth

Amendment violation, it did not make obvious to every reasonable

official that talking about a future arrest and later flashing handcuffs

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21-13212 Opinion of the Court 11

at a detainee (like Sergeant Luffi) was too much. See Vinyard, 311

F.3d at 1351 (explaining that a broad principle must be clear enough

“that every objectively reasonable government official facing the

circumstances would know that [his] conduct did violate federal

law”); Wesby, 583 U.S. at 63 (same). Nor did it make obvious that

saying “I can’t wait to put you in a chair and ask you questions”

and “I’m going to be able to ask you questions!” (like Officer Perez)

was too much.

Gallego argues that the degree of Sergeant Luffi’s and Of-

ficer Perez’s involvement is only relevant to whether a constitu-

tional right was violated, and not to whether a broad principle

clearly established their violations. This argument essentially

asks us to divorce the clearly-established prong from the facts of

Sergeant Luffi’s and Officer Perez’s particular conduct. But both

the Supreme Court and this court have “repeatedly” admonished

that the clearly-established prong’s “dispositive question” is

“whether the violative nature of particular conduct [wa]s clearly es-

tablished.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citations omit-

ted); see also, e.g., Crocker v. Beatty, 995 F.3d 1232, 1241–42 (11th Cir.

2021) (explaining that we must consider “the specific context of the

case” at the clearly-established prong even if the plaintiff relies on

a broad principle (citation omitted)). The violative nature of Ser-

geant Luffi’s and Officer Perez’s participation hinges on the

amount necessary to trigger Fourth Amendment liability. Com-

pare Brown, 608 F.3d at 737, and Rodriguez, 539 F.2d at 401–02, with

Jones, 174 F.3d at 1284. Because no broad principle clearly

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12 Opinion of the Court 21-13212

established their participation exceeded that threshold, Gallego

fails to overcome immunity through the second method.

Finally, this isn’t a case where the challenged conduct “so

obviously violate[d] the [C]onstitution that prior case law [wa]s un-

necessary.” Echols, 913 F.3d at 1324 (citation omitted). Because

this method is a “narrow exception” reserved for “conduct [that]

lies so obviously at the very core of what the Fourth Amendment

prohibits,” Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir. 2012)

(quoting Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002)), it most

often applies in excessive force cases involving “depraved, inhu-

mane treatment,” see Gilmore v. Hodges, 738 F.3d 266, 279 (11th Cir.

2013). For example, we’ve found no need for prior case law

where “a police officer . . . allowed his canine to attack . . . a prone

and wholly compliant suspect,” Terrell, 668 F.3d at 1257–58 (citing

Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000)),

an officer “slammed a suspect’s head against the trunk of his cruiser

after the suspect had been . . . fully secured,” id. at 1258 (citing Lee,

284 F.3d at 1199), and officers “threw a secured suspect headfirst

into . . . pavement” before repeatedly kicking him, id. (citing Slicker

v. Jackson, 215 F.3d 1225, 1227–28 (11th Cir. 2000)). But the con-

duct Gallego complains of—that Sergeant Luffi and Officer Perez

told others she stole the association’s money, showed up at the

board election uninvited, talked about arresting and questioning

her, and flashed handcuffs—is far less extreme and does not so ob-

viously lie at the Fourth Amendment’s core.

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21-13212 Opinion of the Court 13

The dissenting opinion does not dispute any of this. It does

not point to a materially similar case placing the Fourth Amend-

ment question beyond debate—because the dissenting opinion

doesn’t cite any cases involving conduct like Sergeant Luffi’s and

Officer Perez’s. And it does not point to a broader, clearly estab-

lished principle that every objectively reasonable government offi-

cial facing the circumstances would know violated federal law—

because the dissenting opinion doesn’t quote any broader princi-

ples. Instead, the dissenting opinion insists that Gallego alleged

“sufficient factual material . . . to state a claim to relief.” Dissent-

ing Op. at 1 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Maybe. But whether Gallego alleged “sufficient facts” tells us

nothing about the issue the parties argued to us on appeal and that

we have to decide: whether the unlawfulness of Sergeant Luffi’s

and Officer Perez’s conduct was clearly established on the day

Gallego was seized by the off-duty officers. As we’ve already ex-

plained, it wasn’t.

CONCLUSION

Because Gallego failed to show Sergeant Luffi’s and Officer

Perez’s alleged Fourth Amendment violations were clearly estab-

lished, they are entitled to qualified immunity. We reverse the

district court’s order denying Sergeant Luffi and Officer Perez qual-

ified immunity, and we remand for the district court to grant the

officers’ motion to dismiss.

REVERSED and REMANDED.

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1 ANTOON, J., Dissenting 21-13212

ANTOON, District Judge, Dissenting:

Respectfully, I dissent. As the majority says, we review de

novo the district court’s denial of a motion to dismiss on qualified

immunity grounds. See, e.g., St. George v. Pinellas County, 285 F.3d

1334, 1337 (11th Cir. 2002). In conducting this de novo review, we

must “accept[] the facts alleged in the complaint as true and draw[]

all reasonable inferences in [Gallego]’s favor.” Id. “To survive

a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hoefling v.

City of Miami, 811 F.3d 1271, 1275–76 (11th Cir. 2016) (explaining

that there is no heightened pleading requirement in § 1983 cases,

even where qualified immunity is at issue). When I apply these

standards, I conclude that Gallego has plausibly alleged sufficient

facts to withstand the motion to dismiss.

Like Luffi and Perez, the majority focuses on the “clearly es-

tablished” prong of the qualified immunity analysis—that is, on

whether existing case law provided notice to Luffi and Perez that

their level of participation in Gallego’s detention could subject

them to § 1983 liability. In my view, Gallego has alleged enough

to survive Luffi and Perez’s motion to dismiss. This is the case

regardless of whether an officer’s level of participation is appropri-

ately analyzed as part of the “clearly established” prong or as part

of the assessment of each officer’s conduct.

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21-13212 ANTOON, J., Dissenting 2

Gallego’s Second Amended Complaint describes Luffi—the

ranking officer—and Perez as more than mere bystanders or bit

players in Gallego’s detention. Upon arrival at the Hammocks,

they had a ten- to fifteen-minute conversation with the other two

officers, Garcia and Escobar. Although the details of that conver-

sation are not yet known to Gallego or the court, at minimum Luffi

and Perez told Garcia that they were there to arrest Gallego. All

four officers then entered the clubhouse, and Luffi and Perez even-

tually confronted Gallego. In response to that confrontation,

Garcia pushed Gallego and ordered her to sit down. Luffi and Pe-

rez then taunted Gallego while she was sandwiched between Gar-

cia and Escobar. Throughout this course of events, Luffi and Pe-

rez were visibly armed. And Gallego was released only once Luffi

and Perez left.

Perhaps Gallego’s claims would not survive the evidentiary

assessment that occurred at summary judgment in the cases cited

by the majority, but her allegations are sufficient to overcome

Luffi’s and Perez’s assertions of qualified immunity at the motion-

to-dismiss stage. Thus, I would affirm the district court’s denial

of the motion to dismiss.