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/crossappellees. 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 Elkins1 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 

orders2 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 WilliamsCherry, 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-themoment 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. WilliamsCherry 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 WilliamsCherry. 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. WilliamsCherry argues that she is nonetheless entitled to summary 

judgment on the grounds of qualified immunity. Elkins 

responds that this argument is waived because WilliamsCherry 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 WilliamsCherry, 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. ButteSilver 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.