Dalrymple v. Reno, 01-15990.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Citation: 334 F.3d 991
• Docket Number: No. 01-15990.,01-15990.
• Parties: Donato DALRYMPLE, Gregory Paul Allen, et. al., Plaintiffs-Appellees, v. Janet RENO, in her personal capacity, Defendant-Appellant.
• Decision Date: 19 June 2003

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334 F.3d 991 Donato DALRYMPLE, Gregory Paul Allen, et. al., Plaintiffs-Appellees,
v.
Janet RENO, in her personal capacity, Defendant-Appellant. No. 01-15990. United States Court of Appeals, Eleventh Circuit. June 19, 2003.

Page 992

Anne R. Schultz, Miami, FL, Scott R. McIntosh, Barbara L. Herwig, Dept. of Justice, Washington, DC, for Defendant-Appellant.

Larry Elliot Klayman, Klayman & Associates, P.C., Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, COX and BRIGHT^*, Circuit Judges.

TJOFLAT, Circuit Judge:

Like our decision in Gonzalez v. Reno, 325 F.3d 1228 (11th Cir.2003), this case arises from the events surrounding the seizure by federal agents of Elian Gonzalez ("Elian") from the home of Lazaro, Angela, and Marisleysis Gonzalez ("the Gonzalezes") on April 22, 2000. In Gonzalez v. Reno, we held that former Attorney General Janet Reno, former Commissioner of the Immigration and Naturalization Service ("INS") Doris Meissner, and former Deputy Attorney General Eric Holder were entitled to qualified immunity from damages claims by the Gonzalezes because the Gonzalezes failed to establish a causal connection between the supervisory actions of Reno, Meissner, and Holder and the alleged excessive force by the federal agents who forcibly removed Elian Gonzalez from the Gonzalezes' home on April 22, 2000. Now, we must decide whether former Attorney General Reno is entitled to qualified immunity from damages claims by Donato Dalrymple, who was in the Gonzalezes' house when Elian was taken, and fifty-one protestors, neighbors, and passers-by who claim they were sprayed with gas, shoved, kicked, and threatened at gunpoint by federal agents during the raid to seize Elian from the Gonzalezes' home. We conclude that, like the Gonzalezes, these plaintiffs have failed to establish a causal connection between Reno's supervisory actions and the allegedly unconstitutional acts of the federal agents on the scene.

I.

On November 25, 1999, six-year-old Elian Gonzalez, a Cuban boy, was found floating on an innertube off the coast of Fort Lauderdale, Florida. The INS paroled Elian into the United States without inspection and released him into the custody of his great-uncle, Lazaro Gonzalez. After learning that Elian's father, a Cuban citizen,

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had requested that his son be returned to Cuba, the INS refused to consider petitions for Elian's asylum and sought to transfer the child's custody from his uncle to his father, who was in the United States at that time. On April 21, 2000, the INS issued an administrative arrest warrant for Elian and obtained a search warrant for the Gonzalezes' residence. At approximately 5:15 a.m. on April 22, 2000, armed federal agents arrived at the Gonzalezes' home to execute the search and arrest warrants.¹

On July 12, 2000, the plaintiffs commenced this action 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), by filing a three-count complaint for damages against Attorney General Reno, INS Commissioner Meissner, and Deputy Attorney General Holder, in their individual capacities. Unlike the Gonzalezes' complaint, this complaint did not bring suit against the federal agents on the scene. The complaint alleged the following facts regarding the events that transpired in the Gonzalezes' neighborhood during the raid to seize Elian on April 22, 2000.

Plaintiff Dalrymple, the man who rescued Elian from the sea, was asleep on a couch in the Gonzalezes' front foyer when the raid began. After being awakened by the sounds of the federal agents, Dalrymple scooped up Elian from a couch in the living room and carried him to the rear bedroom shared by Lazaro and Angela Gonzalez. Associated Press photographer Alan Diaz, Elian's five-year-old cousin Lazaro Martell, and Martell's mother also ran into the room. Dalrymple held Elian in his arms as federal agents kicked down the bedroom door. One federal agent yelled at Dalrymple to give him the boy while pointing a 9mm submachine gun at Dalrymple. INS Agent Betty A. Mills entered the room with a blanket and grabbed Elian. The federal agents then backed out of the room with Elian, their weapons still aimed at the occupants of the room. The agents exited the house and carried Elian to a van waiting outside.

The other plaintiffs are protestors, neighbors, and passers-by who were present in the Gonzalezes' neighborhood at the time of the raid. When the convoy of federal agents arrived, the protestors were gathered behind a barricade to the west of the Gonzalezes' residence, in neighbors' yards, and elsewhere in the neighborhood to demonstrate support for Elian and the Gonzalezes. When the federal agents arrived, they "immediately began indiscriminately spraying gas to immobilize, restrain and suppress persons who had assembled peacefully behind the barricade, as well as neighbors, passers-by, and even members of the news media assembling along N.W. 2nd Street." The federal agents sprayed them with gas repeatedly, threatened to shoot them, held them at gunpoint, struck them with battering rams, clubs, and rifle butts, kicked them, shoved them to the ground, and shouted obscenities at them. Many of the neighbor plaintiffs were exposed to gas in their homes or when they stepped outside to see what was happening. Thirty-three of the plaintiffs were attempting to move closer to the Gonzalezes' residence when they were sprayed directly in the face with gas, held at gunpoint, struck, and shoved to the ground. Many of the protestor plaintiffs remained behind the barricade when their injuries occurred. The most common physical injuries suffered by plaintiffs were eye, nose, throat and skin irritation and burning, coughing, choking and difficulty breathing.

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In the complaint, forty-three plaintiffs alleged violations of their freedoms of assembly and expression under the First Amendment, twenty-five alleged violations of their rights to be free from unreasonable searches and seizures under the Fourth Amendment, and all fifty-two alleged violations of their rights to be free from excessive physical force under the Fifth Amendment. In a joint motion to dismiss dated August 15, 2000, the defendants asserted the defense of qualified immunity. In an order dated October 1, 2001, the district court granted in part and denied in part the defendants' motion. The court dismissed all claims against Meissner and Holder without prejudice because the complaint failed to allege that either Meissner or Holder supervised the attorney general or was acting in a supervisory capacity when the order to seize Elian was given. The court concluded that only Reno was alleged to have exercised supervisory authority in ordering the raid.

With respect to Reno, the district court dismissed the Fourth Amendment claims of five plaintiffs who would be unable to prove they were unlawfully seized because they alleged that they left the scene immediately after being confronted by federal agents. The district court also dismissed all of the plaintiffs' Fifth Amendment claims with prejudice because, under the alleged circumstances, "no...