[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 15383 Non

- Argument Calendar

________________________ D.C. Docket No. 1:15

- cv - 21271

- RNS

TROOPER DONNA JANE WATTS, Plaintiff

- Appellee,

versus CITY OF MIAMI, et al., Defendants, OFFICER PABLO CAMACHO, OFFICE R ROSHAN MILLIAGAN, OFFICER JESUS PEDRAZA, OFFICER JAMIE RAMIREZ, OFFICER DAVID CISERNO, Defendants

- Appellants.

________________________ Appeal from the United States Di strict Court for the Southern District of Florida

________________________ (February 8, 2017) Before HULL, MARCUS , and WILSON, Circuit Judges.

Case: 16-15383 Date Filed: 02/08/2017 Page: 1 of 102 PER CURIAM: Defendant

- appellants Pablo Camacho, David Cisnero, Roshan Milligan, Jesus Pedraza, and Jaime Ramirez (“Defendants”) appeal from the district court’s denial of their motion for summary judgment on the basis of qualified immunity in favor of Plaintiff

- appellee Donna Watts. Watts’s complaint alleged, among other things, that the D efendants violated the Driver’s Privacy Pr otection Act (DPPA), 18 U.S.C. §§ 2721

– 25, by accessing her information in the Driver and Vehicle Information Database (DAVID) maintained by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). On appeal, the D efendants argue that the district court erred in denying them immunity from Watts’s claims because either : ( 1) their DAVID accesses were permissi ble uses enumerated in the DPPA; or, if
not , ( 2) it was not clearly established that their accesses were not permissible under the DPPA. After thorough review, we reverse and remand

. We review de novo the district court’s decision on a motion for summary judgment based on qualified immunity. Terrell v. Smith , 668 F.3d 1244, 1249

– 50 (11th Cir. 2012). We resolve all issues of material fac t in the plaintiff’s favor and approach the facts from the plaintiff’s perspective. Lee v. Ferraro , 284 F.3d 1188, 1190 (11th Cir. 2002). “We then answer the legal question of whether the defendant is entitled to qualified immunity under that version of the facts.” Id. (quotation and alterations omitted).

Case: 16-15383 Date Filed: 02/08/2017 Page: 2 of 103 The relevant facts are these. On October 11, 2011, Watts

-- a trooper wit h the Florida Highway Patrol

-- pulled over a uniformed but off

- duty City of Miami police officer driving a marked police car. Watts cited him for reckless driving, and , during the stop, pulled her gun on the officer and handcuffed him. The incident was highly publicized and a video of the stop appeared on YouTube. Soon afterward, Watts began receiving online threats, numerous h ang - up telephone calls on her unlisted home and cellular phones, and other forms of harassment.
Watts contacted the DHSMV to ascertain whether law enforcement officers had accessed her DAVID information , and received a report that over 88 law enforcement officers, including the D efendants , had indeed accessed her information. Following the issuance of that report, which was also provided to the City of Miami, t he C ity ’s Internal Affairs Section began an investigation into the
D efendants’ a ccess of Watts’s information

. As part of the investigation, the
D efendants were interviewed. T hey all claimed that they performed a DAVID query as part of their official duties . The officers said that because Watts had pulled her weapon on a police officer, they wanted to be able to identify her for their own safety , and so needed to see her DAVID picture . T he records show , however, that the officers scrolled through multiple pages of information after seeing the Pl aintiff’s picture

. At the end of the investigation, each of the officers

Case: 16-15383 Date Filed: 02/08/2017 Page: 3 of 104 was cited for performing an unauthorized search of DAVID which was not for law enforcemen t or criminal justice purposes , and was officially reprimanded (although no punishment issued). Watts filed a number of civil suits against over 100 defendants for accessing her personal information through DAVID ; t his case is the only one of Watts’s actions that is still pending

. In the course of this case’s proceedings , Watts stipulated t o the dismissal of all other claims and defendants except her DPPA claim s against the D efendants and the City of Miami. All of the parties moved for summary judgment on th e s e claim s , and the district court denied all the motions. The D efendants timely filed this interlocutory appeal as to the court’s denial of their motion for summary judgment on the specific ground of qualified immunity. Qualified immunity “offers complete protection for government officials sued in their in dividual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reaso nable person would have known. ” McCullough v. Antolini , 559 F.3d 1201 , 1205 (11th Cir. 2009 ) (quot ation omitted). In order to receive qualified immunity, a defendant “must first prove that he was acting within the scope of his discretionary authority when the all egedly wrongful acts occurred. ” Courson v. McMillian , 939 F.2d 1479, 1487 (11th Cir. 1991) (quot ation omitted). Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to

Case: 16-15383 Date Filed: 02/08/2017 Page: 4 of 105 show that qualified immunity is not appropriate. See id

. To ascertain whether an official is entitled to qualified immunity , we must “ev aluate whether Plaintiffs’ allegations, if true, establish a violation of a constitutional or statutory right , ” and if so, whether th at right was “clearly established ” such that it “provided fair warning to [the D efendants] that they were violating the law.” Collier v. Dickinson , 477 F.3d 1306, 1308, 1311 (11th Cir. 2007) (citing Hope v. Pelzer , 536 U.S. 730, 731 (2002) )

. Courts may take up these two steps in either order. Brooks v. Warden , 800 F.3d 1295, 1306 (11th Cir. 2015). When considering whether an official “would have known that his actions were prohibited by the law at the time he engaged in the conduct in question,” “[t] he standard is one of objective reasonableness.” Collier , 477 F.3d at 1311. Our Circuit uses two methods to determine whether a reasonable officer would know that his conduct violates federal law. The first “l ooks at the relevant case law at the time of the violation; the right is clearly established if a concrete factual
context exists so as to make it obvious to a reasonable government actor that his actions violate federal law.” Fils v. City of Aventura , 647 F.3d 1272 , 1291 (11th Cir. 2011) (quotation and brackets omitted)

. The second “ looks not at case law, but at the office r’ s conduct, and inquires whether that conduct lies so obviously at the very core of what the [law] prohibits that the unlawfulness of the c onduct was

Case: 16-15383 Date Filed: 02/08/2017 Page: 5 of 106 readily apparent to the officer , notwithstanding the lack of fact

- specific case law.” Id. (quotation and brackets omitted). It is uncontested that the Defendants in this case were acting within their discretionary authority as police officers when they accessed Watts’s DAVID information. Thus, the burden shift ed to Watts to show that they violated a
stat utory right

-- here, her rights under the DPPA. To establish a violation of the DPPA, a plaintiff must show “ that a defendant ( 1) knowingly obtained, disclosed or used personal information, ( 2 ) from a motor vehicle record, ( 3) for a purpose not permitted. ” Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A. , 525 F.3d 1107, 111 1 (11th Cir. 2008). “ The plain meaning of the third factor is that it is only satisfied if [it is] shown that obtainment, disclosure, or use was not f or a pur pose enumerated under § 2721(b) ” ; “the burden [to show this] is properly upon the plaintiff.” Id. at 1111

– 12. In this appeal, t he Defendants do not contest that they ( 1) knowingly obtained Watts’s personal information ( 2) from a motor vehicle record. T hey
argue , however, that Watts failed to show that they obtained her information for an impermissible purpose

. They also argue that even if their purpose was impermissible under the DPPA, Watts has failed to show that such impermissibility was sufficientl y established to warrant denying them qualified immunity

. Case: 16-15383 Date Filed: 02/08/2017 Page: 6 of 107 As the record shows, the district court concluded that Watts established a triable issue of fact as to whether the Defendants violated her DPPA rights, but the court did not specify what the potential impermissible purpose was. The district court also con cluded that the D efend ant s ’ actions were clearly prohibited by the
DPPA based on Circuit precedent that said that “ [ t ] he words of the DPPA alone are

‘ specific enough to establish clearly the law applicable to particular conduct and circumstances and to overcome qualified immunity. ’ ” Collier , 477 F.3d at 13 12 (quoting Vinyard v. Wilson , 311 F.3d 1340, 1350 (11th Cir. 2002) )

. We are compelled to conclude that th e district court erred. Collier is not sufficiently similar to the facts at issue in this case as to constitute “relevant case law” that put the officers on notice, nor did it lay down a general rule that violations of the DPPA are always violations of clearly established law

. This Court in Co llier addressed a situation in which executive

- level DHSMV officials

were selling driver records to third

- party mass marketers without the consent of the drivers

. Id. at 1307. We concluded that this was a violation of clearly established law, because “[t] he l anguage of Sections 2721(b)(11)

– (13) unambiguously requires the consent of individuals before their motor vehicle record inform ation may be released ” for sale to marketers. Id. at 1310

– 11. This is very different from the Defendant’s behavior in this case , where the officers obtained information about Watts for their own use

.

Case: 16-15383 Date Filed: 02/08/2017 Page: 7 of 108 Moreover, Collier does not stand for the principle that all DPPA violations are so obviously clear that qualified immunity can never protect an official from suit under the DPPA. Rather, Collier represents the more common sense judgment that where a violation is readily a pparent from the plain language of an act, the plaintiff need not point to any particular case addressing the obvious import of the
statute. This Court found it clear from the DPPA’s text that consent was required for information released to marketers. I d . at 1310 (“[T] he protections offered by the statute are clear and specific. ”). But a s we’ve said before, “[o]bvious clarity
cases are ‘rare’ and present a ‘ narrow exception ’ to the general rule of qualified immunity .” Gilmore v. Hodges , 738 F.3d 266, 279 (11th Cir. 2013) (quotation and citation omitted). To fall into this category, a prohibition must be so clear that “no reasonable officer could have believed that [the Defendants’] actions were legal.”
Lee v. Ferraro , 284 F.3d 1188, 1 199 (11th Cir. 2002). It is not obviously clear that an officer obtaining the information for his own

use is not within the permissible use of § 2721(b)(1), “ use by any government agency, including any court or law enforcement agency, in carrying out its functions ,” or of § 2721(b)(14), “ any other use specifically authorized under the law of the State that holds the record, if such use is related to

. . . public safety

. ” T o overcome the qualified immunity defense under this standard , Watts was required to show that no reasonable officer in the Defendants’ position could have believed

Case: 16-15383 Date Filed: 02/08/2017 Page: 8 of 109 that he was accessing her DAVID information for a permissible use under the
DPPA

. Watts never made this showing, and the district court , nonetheless , misapplied C ollier to conclude that all DPPA violations are obviously clear, and did not otherwise address the issue.
On appeal, Watts has only argued that “officer safety” was not the true
purpose of the officers’ DAVID accesses . Importantly, however, she has not explicitly alleged, much less carried her burden to show, that the D efendants obtained the information for a purpose clearly not permitted by the DPPA

. See Thomas , 525 F.3d at 11 11

– 12 ( A plaintiff must show “ that a defendant ( 1) knowingly obtained, disclosed or used personal information, ( 2 ) from a motor vehicle record, ( 3) for a purpose not permitted

. ”

. . . [T he p laintiff] argues that t he permissible uses

. . . function as statutory exceptions and, therefore, the defendants should carry the burden of proof to secure entitlement of such exceptions. We disagree. ” ); Gilmore , 738 F.3d at 272 (explaining that once the defendant has established that he was acting wit hin the scope of his discretionary authority, the burde n shifts to the plaintiff to show a violation of a clearly established right). In short, “ [i] n the absence of [any] caselaw to the contrary, [the D efendants] , though [possibly] mistaken, could have reasonably believed ” that their DAVID

accesses were permitted uses under the DPPA. Dukes v. Deaton , __ F.3d __ , 2017 WL 370854 , * 5 (11th Cir., Jan. 26, 2017)

. We, therefore, agree with the

Case: 16-15383 Date Filed: 02/08/2017 Page: 9 of 1010 Defendants that Watts did not show that the officers had “clear notice

. . . that [accessing] the information in question violated federal law.” Collier , 477 F.3d at
1311

– 12. Because Watts failed to show that the officers accessed her information for a purpose that was clearly not permitted by the DPPA, we need not address whether their actual purpose was permitted under the DPPA. 1 Accordingly, we conclude that the district court erred in denying the Defendants qualified immunity. We reverse and remand to the district court for entry of judgment in favor of the Defendants

. REVERSED and REMANDED .

1 The only purpose discussed in this case that might have met the ”clearly established” threshold was harassment of Watts. But as the district court noted in its summary judgment order, Watts “[did] not link[ ] the harassment to these officers,” and even o n appeal, Watts only notes that she “cannot rule out whether any of the police officers named in this case used the information he or she accessed from DAVID to further stalk or otherwise threaten or harass her.” Because Watts does not make the argument th at the Defendants’ purpose was to harass her, the Defendants cannot be denied summary judgment on that ground. See Access Now, Inc. v. Sw

. Airlines Co. , 385 F.3d 1324, 1330 (11th Cir. 2004) ( “ [A] legal claim or argument that has not been briefed before th e court is deemed abandoned and its merits will not be addressed.” ).

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