725 F.3d 451 (4th Cir. 2013), 12-1980, Santos v. Frederick County Board of Commissioners

Docket Nº:12-1980
Citation:725 F.3d 451
Opinion Judge:WYNN, Circuit Judge.
Party Name:ROXANA ORELLANA SANTOS, Plaintiff - Appellant, v. FREDERICK COUNTY BOARD OF COMMISSIONERS; CHARLES JENKINS, Frederick County Sheriff, in his official and individual capacity; JEFFREY OPENSHAW, Frederick County Deputy Sheriff, in his official and individual capacity; KEVIN LYNCH, Frederick County Deputy Sheriff, in his official and individual capaci
Attorney:John Carney Hayes, Jr., NIXON PEABODY, LLP, Washington, D.C., for Appellant. Sandra Diana Lee, KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland, for Appellees. Daniel Karp, KARPINSKI, COLARESI & KARP, Baltimore, Maryland, for Appellees. Michael M. Hethmon, Garrett R. Roe, IMMIGRATION REFORM ...
Judge Panel:Before DAVIS and WYNN, Circuit Judges, and James R. SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.
Case Date:August 07, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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725 F.3d 451 (4th Cir. 2013)

ROXANA ORELLANA SANTOS, Plaintiff - Appellant,

v.

FREDERICK COUNTY BOARD OF COMMISSIONERS; CHARLES JENKINS, Frederick County Sheriff, in his official and individual capacity; JEFFREY OPENSHAW, Frederick County Deputy Sheriff, in his official and individual capacity; KEVIN LYNCH, Frederick County Deputy Sheriff, in his official and individual capacity, Defendants - Appellees,

And

JULIE L. MEYERS, former Assistant Secretary for Homeland Security of Immigration and Customs Enforcement, in her official and individual capacity; CALVIN MCCORMICK, Field Office Director of the ICE Office of Detention and Removal, in his official and individual capacity; JAMES A. DINKINS, Special Agent in Charge of the ICE Office of Investigations, Baltimore, MD, in his official and individual capacity, Defendants. IMMIGRATION REFORM LAW INSTITUTE, Amicus Supporting Appellees

No. 12-1980

United States Court of Appeals, Fourth Circuit

August 7, 2013

Argued May 15, 2013

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Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, Senior District Judge. (1:09-cv-02978-BEL).

ARGUED:

John Carney Hayes, Jr., NIXON PEABODY, LLP, Washington, D.C., for Appellant.

Sandra Diana Lee, KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland, for Appellees.

ON BRIEF:

Daniel Karp, KARPINSKI, COLARESI & KARP, Baltimore, Maryland, for Appellees.

Michael M. Hethmon, Garrett R. Roe, IMMIGRATION REFORM LAW INSTITUTE, Washington, D.C., for Amicus Supporting Appellees.

Before DAVIS and WYNN, Circuit Judges, and James R. SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

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WYNN, Circuit Judge.

Plaintiff Roxana Orellana Santos appeals the dismissal of her 42 U.S.C. § 1983

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action against the Frederick County (Maryland) Board of Commissioners, the Frederick County Sheriff, and two deputy sheriffs. Santos alleged that the deputies violated her Fourth Amendment rights when, after questioning her outside of her workplace, they arrested her on an outstanding civil warrant for removal issued by Immigration and Customs Enforcement (" ICE" ). The U.S. District Court for the District of Maryland granted summary judgment to all defendants, concluding that Santos's initial questioning by the deputies did not implicate the Fourth Amendment and that the civil immigration warrant justified Santos's subsequent stop and arrest.

We agree with the district court that the deputies did not seize Santos until one of the two deputies gestured for her to remain seated while they verified that the immigration warrant was active. But the civil immigration warrant did not provide the deputies with a basis to arrest or even briefly detain Santos. Nonetheless, we conclude that the individual defendants are immune from suit because at the time of the encounter neither the Supreme Court nor this Court had clearly established that local and state law enforcement officers may not detain or arrest an individual based on a civil immigration warrant. Qualified immunity does not extend, however, to municipal defendants. We therefore affirm the district court's award of summary judgment to the deputies and the Sheriff and vacate the district court's dismissal of Santos's action against the municipal defendants.

I.

A.

A native of El Salvador, Santos moved to the United States in 2006. On an October morning in 2008, Santos sat on a curb behind the Common Market food co-op in Frederick, Maryland, where she worked as a dishwasher. Santos ate a sandwich while waiting for her shift to begin. From the curb, Santos faced a grassy area and pond that ran along the rear of the shopping complex in which the co-op was located. A large metal shipping container stood between her and the shopping complex. As Santos ate, she saw a Frederick County Sheriff's Office (the " Sheriff's Office" ) patrol car slowly approach her from her left. She remained seated, in full view of the patrol car, and continued eating her sandwich.

Deputy Sheriffs Jeffrey Openshaw and Kevin Lynch were in the car conducting a routine patrol of the area. Although the Sheriff's Office had reached an agreement with ICE under 8 U.S.C. § 1357(g) authorizing certain deputies to assist ICE in immigration enforcement efforts, neither Openshaw nor Lynch was trained or authorized to participate in immigration enforcement.

The deputies parked the patrol car on the side of the shipping container opposite Santos. Openshaw and Lynch stepped out of the patrol car and walked toward Santos, going around opposite sides of the shipping container to reach her. Both deputies wore standard uniforms and carried guns.

Openshaw stopped about six feet away from her and asked her if she spoke English, to which she responded, " No." J.A. 095, 398-99. Lynch stood closer to the patrol car. It was immediately apparent to Openshaw that Santos, a native Spanish speaker, had difficulty communicating in English. Openshaw asked Santos in English whether she was on break, and she replied that she was. He then asked her if she worked at the Common Market, and she said she did. Again in English, Openshaw asked her whether she had identification,

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and she responded in Spanish that she did not.

At this point, Openshaw stepped away from Santos to speak privately with Lynch near the patrol car. Santos remained seated. After a few minutes, Santos recalled that she had her El Salvadoran national identification card in her purse. Still sitting, she showed the card to the deputies. Openshaw took the card and asked her whether the name on the ID was hers. She told him it was, and he walked back to the car to speak with Lynch. Santos estimated that by this time at least fifteen minutes had passed since the deputies first approached her. As the deputies stood together talking, Santos saw Openshaw use his radio.

The deputies said that once they received Santos's identification information, they relayed it to radio dispatch to run a warrant check on Santos. After completing the warrant check, dispatch informed the deputies that Santos had an outstanding ICE warrant for " immediate deportation." J.A. 188. Following standard procedure, Openshaw asked dispatch to verify that the ICE warrant was active. Although he did not know what dispatch did in this particular case, Openshaw testified that dispatch typically contacts ICE when verifying an immigration warrant. Openshaw also said that at this point he considered Santos to be under arrest, though he had not yet handcuffed her.

After dispatch had initially notified the deputies of the ICE warrant but before dispatch had determined whether the warrant was active, Santos asked the deputies if there was any problem. Openshaw replied, " No, no, no," and held out his hand, gesturing for her to remain seated. J.A. 136.

About twenty minutes after she handed the deputies her national ID card, Santos decided to head into the food co-op to start her shift. When she attempted to stand, the deputies, who just had been informed by dispatch that the warrant was active, grabbed her by the shoulders and handcuffed her. Until this point, neither deputy had had any physical contact with her.

The deputies placed Santos in the patrol car, transported her to patrol headquarters, and then transferred her to a Maryland detention center. Approximately forty-five minutes after Santos's arrest, ICE Senior Special Agent S. Letares requested that the detention center hold Santos on ICE's behalf. ICE initially held Santos in two Maryland facilities and then transferred her to a jail in Cambridge, Massachusetts, where she stayed until her supervised release on November 13, 2008. Santos v. Frederick Cnty. Bd. of Comm'rs, 884 F.Supp.2d 420, 425 (D. Md. 2012).

B.

In November 2009, Santos filed a Section 1983 complaint against Openshaw and Lynch, Frederick County Sheriff Charles Jenkins, the Frederick County Board of Commissioners, and several individuals from ICE and the Department of Homeland Security. The complaint alleged that the deputies violated her Fourth Amendment rights when they seized and later arrested her. The complaint also alleged that the deputies violated her rights under the Equal Protection Clause of the Fourteenth Amendment because the deputies " approached . . . and interrogated her based solely on her perceived race, ethnicity and/or national origin." J.A. 102.

All defendants moved to dismiss Santos's initial complaint under Rule 12(b)(6). The district court dismissed without prejudice the Section 1983 claims against the deputies on grounds that the complaint alleged that the deputies were acting under the color of federal law and

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thus the action should have been brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).1

Santos v. Frederick Cnty. Bd. of Comm'rs, No: L-09-2978, 2010 WL 3385463, at *3 (D. Md. Aug. 25, 2010). The district court also bifurcated her supervisory liability claims against Sheriff Jenkins and the Board of Commissioners, and stayed those claims pending resolution of Santos's claims against the deputies. __ [WL] __ at *4.

Santos filed a second amended complaint against the same defendants, asserting essentially the same claims as in the previously dismissed complaint. And she did not recharacterize her claims against the municipal defendants as Bivens claims.

After discovery, the deputies moved for summary judgment. The district...

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