PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1980

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.

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)
2

Argued: May 15, 2013 Decided: August 7, 2013

Before DAVIS and WYNN, Circuit Judges, and James R. SPENCER, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published 

opinion. Judge Wynn wrote the opinion, in which Judge Davis and 

Judge Spencer concurred.

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.
3

WYNN, Circuit Judge:

Plaintiff Roxana Orellana Santos appeals the dismissal of 

her 42 U.S.C. § 1983 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. 
4

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 9 

U.S.C. § 1357(g) authorizing certain deputies to assist ICE in 
5

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, 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 
6

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, 
7

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 
8

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 thus the action should have 

been brought under Bivens v. Six Unknown Named Agents of Federal 

Bureau of Narcotics, 403 U.S. 388 (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. Id. 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 court granted the deputies’ motion, concluding that 

there was no dispute of fact regarding whether the deputies 

 1 Bivens established a private right of action to remedy 

constitutional injuries attributable to individuals acting under 

the color of federal law. 403 U.S. at 397.
9

violated Santos’s Fourth Amendment rights. Santos, 884 F. Supp. 

2d at 428-29. In particular, the district court held that 

Santos was not “seized” for purposes of the Fourth Amendment 

until Openshaw gestured for her to remain seated, and that, at 

that time, the civil ICE warrant provided the deputies with 

adequate justification for the seizure. Id. The district court 

further concluded that Santos’s Equal Protection claim failed as 

a matter of law, holding that law enforcement officers do not 

violate the Equal Protection Clause if they initiate consensual 

encounters solely on the basis of racial considerations.2

 Id. at 

429-30. Having concluded that the deputies did not violate 

Santos’s constitutional rights, the district court also 

dismissed Santos’s claims against Sheriff Jenkins and the 

Frederick County Board of Commissioners. Id. at 432. 

 2 Santos did not appeal the district court’s Equal 

Protection decision, and it is therefore not before us. 

Nevertheless, we note that while this Circuit has not yet 

addressed the issue, see United States v. Henderson, 85 F.3d 

617, 1996 WL 251370, at *2 (4th Cir. 1996) (unpublished table 

decision) (declining to decide “whether selecting persons for 

consensual interviews based solely on race raises equal 

protection concerns”), two other Circuit Courts have indicated 

that consensual encounters initiated solely based on race may 

violate the Equal Protection Clause, United States v. Avery, 137 

F.3d 343, 353 (6th Cir. 1997) (“[C]onsensual encounters may 

violate the Equal Protection Clause when initiated solely based 

on racial considerations.”); United States v. Manuel, 992 F.2d 

272, 275 (10th Cir. 1993) (“[S]electing persons for consensual 

interviews based solely on race is deserving of strict scrutiny 

and raises serious equal protection concerns.”).
10

Santos moved for reconsideration under Federal Rule of 

Civil Procedure 59(e), highlighting a number of federal court 

decisions authored after the district court’s summary judgment 

hearing holding that state and local governments lack inherent 

authority to enforce civil federal immigration law. The 

district court denied Santos’s motion, holding that even if the 

other federal court decisions and the Supreme Court’s landmark 

immigration decision in Arizona v. United States, 132 S. Ct. 

2492, 2507 (2012), suggested an “emerging consensus” that local 

officers may not enforce civil immigration law, the deputies 

were still entitled to qualified immunity for their conduct.

J.A. 624. Santos timely appealed.

II.

The Fourth Amendment secures an individual’s right to be 

free from “unreasonable searches and seizures.” U.S. Const. 

amend. IV. In determining whether a law enforcement officer 

unconstitutionally seized an individual, we engage in a multistep inquiry. Because “not every encounter between a police 

officer and a citizen is an intrusion requiring an objective 

justification,” United States v. Mendenhall, 446 U.S. 544, 553 

(1980) (opinion of Stewart, J.), we first must decide if and 

when the individual was “seized” for purposes of the Fourth 

Amendment, United States v. Wilson, 953 F.2d 116, 120 (4th Cir. 
11

1991). If we conclude the individual was “seized,” we then 

determine whether the law enforcement officer had adequate 

justification to support the seizure. Terry v. Ohio, 392 U.S. 

1, 20-22 (1968). Finally, in Section 1983 cases, even if a

seizure runs afoul of the Fourth Amendment, a plaintiff may not 

be able to obtain relief if the defendant is entitled to 

qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982).

Santos raises objections to the district court’s rulings on 

each of these three issues. In particular, Santos argues that 

the district court (1) improperly determined that she was not 

“seized” when the deputies initially approached and questioned 

her; (2) incorrectly held that the deputies did not violate her 

Fourth Amendment rights when they detained and later arrested 

her based on the civil ICE warrant; and (3) erred in holding 

that, even if the deputies had violated Santos’s constitutional 

rights, they were entitled to qualified immunity for their 

actions. We address these arguments in turn, reviewing each de 

novo and viewing facts and all reasonable inferences in the 

light most favorable to the nonmoving party. Rosetta Stone Ltd. 

v. Google, Inc., 676 F.3d 144, 150 (4th Cir. 2012); Pritchett v. 

Alford, 973 F.3d 307, 313 (4th Cir. 1992).
12

III.

A. 

Regarding the threshold question of whether the encounter 

constituted a Fourth Amendment seizure, the Supreme Court has 

identified three categories of police-citizen encounters. 

United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002). 

Each category represents differing degrees of restraint and, 

accordingly, requires differing levels of justification. See

id. First, “consensual” encounters, the least intrusive type of 

police-citizen interaction, do not constitute seizures and, 

therefore, do not implicate Fourth Amendment protections. 

Florida v. Bostick, 501 U.S. 429, 434 (1991). Second, brief 

investigative detentions-commonly referred to as “Terry stops”-

require reasonable, articulable suspicion of criminal activity. 

Terry, 392 U.S. at 21. Finally, arrests, the most intrusive 

type of police-citizen encounter, must be supported by probable 

cause. Devenpeck v. Alford, 53 U.S. 146, 152 (2006).

A police-citizen encounter rises to the level of a Fourth 

Amendment seizure when “the officer, by means of physical force 

or show of authority, has in some way restrained the liberty of 

a citizen . . . .” United States v. Jones, 678 F.3d 293, 299 

(4th Cir. 2012) (quoting Terry, 392 U.S. at 19 n.16). This 

inquiry is objective, Weaver, 282 F.3d at 309, asking whether 

“‘in view of all of the circumstances surrounding the incident, 
13

a reasonable person would have believed that he was not free to 

leave.’” Jones, 678 F.3d at 299 (quoting Mendenhall, 446 U.S. 

at 553). An encounter generally remains consensual when, for 

example, police officers engage an individual in routine 

questioning in a public place. United States v. Gray, 883 F.2d 

320, 323 (1989); see also Bostick, 501 U.S. at 434 (“[M]ere 

police questioning does not constitute a seizure.”).

We have identified a number of non-exclusive factors to 

consider in determining whether a police-citizen encounter 

constitutes a seizure: 

the number of police officers present during the 

encounter, whether they were in uniform or displayed 

their weapons, whether they touched the defendant, 

whether they attempted to block his departure or 

restrain his movement, whether the officers’ 

questioning was non-threatening, and whether they 

treated the defendant as though they suspected him of 

“illegal activity rather than treating the encounter 

as ‘routine’ in nature.”

Jones, 678 F.3d at 299-300 (quoting Gray, 883 F.2d at 322-23). 

We also consider “the time, place, and purpose” of an encounter. 

Weaver, 282 F.3d at 310. 

Although the inquiry is objective—and thus the subjective 

feelings of the law enforcement officers and the subject are 

irrelevant—we also consider certain individual factors that 

“might have, under the circumstances, overcome that individual’s 

freedom to walk away.” Gray, 883 F.2d at 323. For example, in 

Gray, this Circuit indicated that an individual’s lack of 
14

familiarity with English may be a relevant consideration. Id. 

Nevertheless, “no one factor is dispositive;” rather, we 

determine whether an encounter is consensual by considering the 

totality of the circumstances. Weaver, 282 F.3d at 310.

B.

Here, Santos argues that she was “seized” for purposes of 

the Fourth Amendment when the deputies “surrounded her and began 

questioning her.” Appellant’s Br. at 20. In particular, 

Santos emphasizes, among other factors, that the deputies 

approached her from opposite sides of the shipping container, 

that she was questioned by more than one officer, that the 

deputies wore uniforms and carried guns, and that she was 

unfamiliar with English. By contrast, the defendants contend 

that the deputies’ interaction with Santos remained consensual 

until after the deputies had been informed of the outstanding 

warrant. 

The district court decided that Santos was not seized when 

the deputies initially approached her. Santos, 884 F. Supp. 2d 

at 428. In light of precedent and the totality of the 

circumstances before us, we must agree. 

The deputies approached Santos during the daytime and in a 

public area where employees would “frequently” take breaks or 

eat lunch. J.A. 431; see Weaver, 282 F.3d at 312 (finding 
15

encounter occurring in “public parking lot in the middle of the 

day” was consensual); Gray, 883 F.3d at 323-24 (holding that 

“public setting” diminished coerciveness of police-citizen 

encounter). They came across Santos as part of a routine 

patrol, rather than singling her out for investigation. Jones, 

678 F.3d at 301 (holding that “routine” encounters are more 

likely to be consensual than “targeted” encounters). The 

deputies stood well away from Santos-Deputy Openshaw stood 

approximately six feet from her, and Deputy Lynch was even 

farther way, standing near the patrol car-giving her ample space 

to leave had she elected to do so. 

No evidence suggests that the deputies used a commanding or 

threatening tone in questioning Santos. And the types of 

questions the deputies posed-asking her for identification, 

whether she was an employee of the co-op, and whether she was on 

break-are the types of questions law enforcement officers 

generally may ask without transforming a consensual encounter 

into a Fourth Amendment seizure. See United States v. Drayton, 

536 U.S. 194, 201 (2002) (“Even when law enforcement officers 

have no basis for suspecting a particular individual, they may 

pose questions [and] ask for identification . . . .”). Finally, 

the deputies did not touch Santos until they placed her under 

arrest.
16

Additionally, none of the factors Santos highlighted 

sufficiently call into question our conclusion that the 

encounter was consensual at inception. Although two deputies 

were present, only Openshaw approached and questioned Santos. 

See United States v. Thompson, 546 F.3d 1223, 1227 (10th Cir. 

2008) (holding that encounter was consensual when there were 

multiple officers present but only one officer approached the 

individual). Moreover, absent other indicia that an encounter 

is nonconsensual, the presence of two officers is generally 

insufficient. Mendenhall, 446 U.S. at 555 (holding that policecitizen encounter was consensual when two officers questioned 

the individual); Gray, 883 F.2d at 323 (same). And even though 

the deputies approached her from opposite sides of the shipping 

container, they stood well back from her, leaving her room to 

walk away. 

Santos also notes that the deputies were wearing standard 

uniforms and carrying guns. But the deputies never brandished 

their weapons, and, in some cases, uniforms serve as a “cause 

for assurance, not discomfort.” Drayton, 536 U.S. at 204-05 

(noting that “[t]he presence of a holstered firearm . . . is 

unlikely to contribute to the coerciveness of [an] encounter 

absent active brandishing of the weapon”). Finally, although 

the language barrier may have added to the coerciveness of the 

situation, because no one factor is dispositive, the language 
17

barrier, on its own, is insufficient to turn the otherwise 

consensual encounter into a seizure. See Weaver, 282 F.3d at 

310.

C.

Even though the encounter initially did not implicate the 

Fourth Amendment, “[s]ome contacts that start out as 

constitutional may . . . at some unspecified point, cross the 

line and become an unconstitutional seizure.” Id. at 309. Like 

the district court, we conclude that the consensual encounter 

became a Fourth Amendment seizure when Openshaw gestured for 

Santos to remain seated. Santos, 884 F. Supp. 2d at 428.

Openshaw’s gesture “unambiguous[ly]” directed Santos to 

remain seated. See Brendlin v. California, 551 U.S. 249, 255 

(2007) (stating that a seizure occurs “[w]hen the actions of the 

police . . . show an unambiguous intent to restrain”). As the 

district court correctly explained, “[u]nder the circumstances, 

Openshaw’s gesture would have communicated to a reasonable 

person that she was not at liberty to rise and leave.” Santos, 

884 F. Supp. 2d at 428. Indeed, Santos understood as much, 

remaining seated after Openshaw’s gesture. See United States v. 

Jones, 562 F.3d 768, 774 (6th Cir. 2009) (holding that 

individuals were seized for purposes of the Fourth Amendment 
18

when they “passively acquiesced” in response to officer’s show 

of authority).

IV.

Having concluded that Santos was seized when Openshaw 

gestured for her to remain seated, we now must determine whether 

the deputies violated her constitutional rights when they 

detained and subsequently arrested her on the civil ICE warrant. 

Santos argues that her seizure and arrest violated the Fourth 

Amendment because neither of the deputies was certified or 

authorized to engage in enforcement of federal civil immigration 

law.

A.

Before addressing the merits of Santos’s constitutional 

claims, we first must determine whether this question is 

properly before us on appeal. The defendants contend that

Santos abandoned any claim that the deputies’ actions 

constituted the unauthorized enforcement of federal civil 

immigration law, or, in the alternative, that Santos waived such 

argument during oral argument on the summary judgment motion. 

Both arguments are without merit.

First, the defendants argue that Santos abandoned any claim 

that the deputies had no authority to enforce federal civil 
19

immigration law by failing to restyle her action as a Bivens

claim after the district court dismissed her initial complaint 

for failure to state a claim. In the Rule 12(b)(6) dismissal, 

the district court held that the initial complaint was 

improperly styled as a Section 1983 action because 8 U.S.C. § 

1357(g)(8) provides that a local law enforcement officer “acting 

under . . . any agreement [with ICE under Section 1357(g)] shall 

be considered to be acting under color of federal authority for 

purposes of determining liability . . . in a civil action.” 

J.A. 81. Yet it is undisputed that the deputies were not 

participating in the Sheriff’s Office’s Section 1357(g) program 

with ICE. And Santos avers that they were not acting under 

color of federal authority. See, e.g., J.A. 101 (“Defendants 

Openshaw and Lynch detained [and] arrested Ms. Orellana Santos 

without the legal authority to do so . . . .”). Accordingly, 

Santos properly refiled her complaint as a Section 1983 action.

Further, the defendants contend that Santos waived any 

argument that the deputies lacked authority to make an arrest 

based on a civil ICE warrant when, during oral argument on the 

summary judgment motion, her counsel said that “we certainly 

don’t dispute the fact that once . . . the deputies are aware 

that there is an active warrant, they have probable cause.” 

J.A. 503. But it is not clear from the transcript whether the 

reference to “active warrant” refers to a civil warrant or a 
20

criminal warrant. And earlier during oral argument, Santos’s

counsel said that local police lack authority to enforce federal 

immigration laws. Moreover, Santos’s summary judgment brief

unambiguously argued that the deputies lacked authority to 

enforce civil federal immigration law. The defendants cite no 

authority, nor can we find any, holding that an ambiguous 

statement made during oral argument waives an argument clearly 

raised in a brief.

B.

Having concluded that the issue is properly before us, we 

now address the merits of Santos’s claim that the deputies 

violated her Fourth Amendment rights by seizing and arresting 

her based on the civil ICE removal warrant. Because the 

Constitution grants Congress plenary authority over immigration, 

Johnson v. Whitehead, 647 F.3d 120, 126-27 (4th Cir. 2011), 

state and local law enforcement officers may participate in the 

enforcement of federal immigration laws only in “specific, 

limited circumstances” authorized by Congress, Arizona v. United 

States, 132 S. Ct. at 2507. 

Local law enforcement officers may assist in federal 

immigration enforcement efforts under 8 U.S.C. § 1357(g)(1), 

which authorizes the Attorney General to enter into agreements 

with local law enforcement agencies that allow specific local 
21

officers to perform the functions of federal immigration 

officers. Arizona v. United States, 132 S. Ct. at 2506. Even 

in the absence of a written agreement, local law enforcement 

agencies may “cooperate with the Attorney General in the 

identification, apprehension, detention, or removal of aliens 

not lawfully present in the United States.” § 1357(g)(10)(B). 

When enforcing federal immigration law pursuant to Section 

1357(g), local law enforcement officers are “subject to the 

direction and supervision of the Attorney General.” § 

1357(g)(3). 

Other statutory provisions authorize local law enforcement 

officers to engage in immigration enforcement in more 

circumscribed situations. See, e.g., § 1103(a)(10) (allowing 

the Attorney General to authorize local law enforcement officers 

to assist in immigration enforcement in the event of an “actual 

or imminent mass influx of aliens arriving off the coast of the 

United States”); § 1252c(a) (authorizing local law enforcement 

officers to arrest illegally present aliens who have “previously 

been convicted of a felony in the United States and deported or 

left the United States after such conviction”); § 1324(c) 

(allowing local law enforcement officers to arrest individuals 

for bringing in and harboring certain aliens). 

Although not clearly addressed by federal statute, state 

and local law enforcement officers also may be able to 
22

investigate, detain, and arrest individuals for criminal

violations of federal immigration law. In particular, before 

Arizona v. United States, some Circuits held that neither the 

Fourth Amendment nor federal immigration law precludes state and 

local enforcement of federal criminal immigration law. See, 

e.g., United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 

(10th Cir. 1999). And we have indicated that local law 

enforcement officials may detain or arrest an individual for 

criminal violations of federal immigration law without running 

afoul of the Fourth Amendment, so long as the seizure is 

supported by reasonable suspicion or probable cause and is 

authorized by state law. United States v. Guijon-Ortiz, 660 

F.3d 757, 764 & 764 n.3 (4th Cir. 2011). But we have not had 

occasion to address whether federal immigration law preempts 

state and local officers from enforcing federal criminal 

immigration laws. And the Supreme Court has expressly left that 

question open. Arizona v. United States, 132 S. Ct. at 2509.

Although the Supreme Court has not resolved whether local 

police officers may detain or arrest an individual for suspected 

criminal immigration violations, the Court has said that local 

officers generally lack authority to arrest individuals 

suspected of civil immigration violations. Noting that “[a]s a 

general rule, it is not a crime for a removable alien to remain 

present in the United States,” the Supreme Court concluded that 
23

“[i]f the police stop someone based on nothing more than 

possible removability, the usual predicate for arrest is 

absent.” Id. at 2505. Relying on this rule, the Supreme Court 

held unconstitutional a provision in an Arizona statute that

authorized a state officer to “‘without a warrant . . . arrest a 

person if the officer has probable cause to believe . . . [the 

person] has committed any public offense that makes [him] 

removable from the United States.’” Id. (quoting Ariz. Rev. 

Stat. Ann. § 13-3883(A)(5)). 

Lower federal courts have universally-and we think 

correctly-interpreted Arizona v. United States as precluding 

local law enforcement officers from arresting individuals solely 

based on known or suspected civil immigration violations. See

Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012); 

Melendres v. Arpaio, No. PHX-CV-07-02513-GMS, 2013 WL 2297173, 

at *60-63 (D. Ariz. May 24, 2013); Buquer v. City of 

Indianapolis, No. 1:11-cv-00708-SEB-MJD, 2013 WL 1332158, at 

*10-11 (S.D. Ind. Mar. 28, 2013).

The rationale for this rule is straightforward. A law 

enforcement officer may arrest a suspect only if the officer has 

“‘probable cause’ to believe that the suspect is involved in 

criminal activity.” Brown v. Texas, 443 U.S. 47, 51 (1979). 

Because civil immigration violations do not constitute crimes, 

suspicion or knowledge that an individual has committed a civil 
24

immigration violation, by itself, does not give a law 

enforcement officer probable cause to believe that the 

individual is engaged in criminal activity. Melendres, 695 F.3d 

at 1000-01. Additionally, allowing local law enforcement 

officers to arrest individuals for civil immigration violations 

would infringe on the substantial discretion Congress entrusted

to the Attorney General in making removability decisions, which 

often require the weighing of complex diplomatic, political, and 

economic considerations. See Arizona v. United States, 132 S. 

Ct. at 2506-07.

Although Arizona v. United States did not resolve whether 

knowledge or suspicion of a civil immigration violation is an 

adequate basis to conduct a brief investigatory stop, the 

decision noted that “[d]etaining individuals solely to verify 

their immigration status would raise constitutional concerns.” 

Id. at 2509. Nonetheless, the Court’s logic regarding arrests 

readily extends to brief investigatory detentions. In 

particular, to justify an investigatory detention, a law 

enforcement officer must have reasonable, articulable suspicion 

that “criminal activity may be afoot.” Terry, 392 U.S. at 30. 

And because civil immigration violations are not criminal 

offenses, suspicion or knowledge that an individual has 

committed a civil immigration violation “alone does not give 
25

rise to an inference that criminal activity is ‘afoot.’” 

Melendres, 695 F.3d at 1001.

Therefore, we hold that, absent express direction or 

authorization by federal statute or federal officials, state and 

local law enforcement officers may not detain or arrest an 

individual solely based on known or suspected civil violations 

of federal immigration law.

Like the district court, we conclude that the deputies 

seized Santos for purposes of the Fourth Amendment when Deputy 

Openshaw gestured for her to stay seated after dispatch informed 

him of the outstanding civil ICE deportation warrant. See supra

Part III.C. At that time, the deputies’ only basis for 

detaining Santos was the civil ICE warrant. Yet as the 

defendants concede, the deputies were not authorized to engage 

in immigration law enforcement under the Sheriff’s Office’s 

Section 1357(g)(1) agreement with the Attorney General. They 

thus lacked authority to enforce civil immigration law and 

violated Santos’s rights under the Fourth Amendment when they 

seized her solely on the basis of the outstanding civil ICE 

warrant. 

C.

We find unpersuasive the defendants’ arguments that the 

deputies lawfully detained and arrested Santos. First, the 
26

defendants contend that the deputies properly seized Santos 

pursuant to Section 1357(g)(10), which, as previously explained, 

allows state law enforcement officers to “cooperate” with the 

federal government in immigration enforcement, even when 

officers are not expressly authorized to do so under a Section 

1357(g)(1) agreement. In Arizona v. United States, the Supreme 

Court concluded that “no coherent understanding of [‘cooperate’

in Section 1357(g)(10)] would incorporate the unilateral 

decision of state officers to arrest an alien for being 

removable absent any request, approval, or other instruction 

from the Federal Government.” 132 S. Ct. at 2507. Thus, 

Arizona v. United States makes clear that under Section 

1357(g)(10) local law enforcement officers cannot arrest aliens 

for civil immigration violations absent, at a minimum, direction 

or authorization by federal officials.

The defendants assert that Santos’s detention and arrest 

was lawful under Section 1357(g)(10) because “there is no 

dispute that ICE . . . directed the Deputies to detain Santos 

and to transfer her to the ICE detention facility . . . .” 

Appellee’s Br. at 48. Although there may be no dispute as to 

whether ICE directed the deputies to detain Santos at some 

point, the key issue for our purposes is when ICE directed the 

deputies to detain her. We conclude that the deputies seized 

Santos when Deputy Openshaw told her to remain seated-after they 
27

had learned of the outstanding ICE warrant but before dispatch 

confirmed with ICE that the warrant was active. See supra Part 

III.C. Indeed, ICE’s request that Santos be detained on ICE’s 

behalf came fully forty-five minutes after Santos had already 

been arrested. Therefore, it is undisputed that the deputies’ 

initial seizure of Santos was not directed or authorized by ICE. 

 And the ICE detainer does not cleanse the unlawful 

seizure, because “[t]he reasonableness of an official invasion 

of [a] citizen’s privacy must be appraised on the basis of the 

facts as they existed at the time that invasion occurred.” 

United States v. Jacobsen, 466 U.S. 109, 115 (1984); see also

Beck v. Ohio, 379 U.S. 89, 91 (1964) (“Whether [an] arrest was 

constitutionally valid depends in turn upon whether, at the 

moment the arrest was made, the officers had probable cause to 

make it-whether at that moment the facts and circumstances 

within their knowledge and of which they had reasonably 

trustworthy information were sufficient to warrant a prudent man 

in believing that the petitioner had committed or was committing 

an offense.” (emphasis added)).

The defendants also suggest that in Guijon-Ortiz and United 

States v. Soriano-Jarquin, 492 F.3d 495 (4th Cir. 2007), this 

Court established that evidence of “unlawful[] presen[ce]” 

constitutes reasonable suspicion to detain an individual pending 

transport to ICE. Appellee’s Br. at 40. The defendants’
28

reliance on Guijon-Ortiz and Soriano-Jarquin, both of which were 

decided before Arizona v. United States, is misplaced. 

The defendants correctly note that in Guijon-Ortiz we said 

that a county sheriff’s deputy had reasonable suspicion to 

arrest the defendant for “unlawful . . . presence in the 

country” when, during the course of a lawful traffic stop, the 

deputy learned that the defendant had presented him with a 

fraudulent green card. 660 F.3d at 765. Guijon-Ortiz is 

inapposite because the deputy had reasonable suspicion that the 

defendant violated a criminal provision of federal immigration 

law-knowingly using a false or fraudulent immigration 

identification card in violation of 18 U.S.C. § 1546(a), id. at 

763 n.3-not a civil provision, as was the case here. Further, 

in Guijon-Ortiz the deputy detained and transported the 

defendant only after being expressly directed to do so by ICE, 

id. at 760, which, as previously explained, was not the case 

here.

In Soriano-Jarquin, we considered whether a state police 

officer violated the Fourth Amendment when, during a lawful 

traffic stop, the officer asked passengers in a van for 

identification. 492 F.3d at 496. After being advised by the 

driver of the van that the passengers were illegal aliens and 

while diligently pursuing the independent basis for the traffic 

stop, the officer contacted ICE, which directed him to detain 
29

the van pending arrival of ICE agents. Id. at 496-97. 

Therefore, like Guijon-Ortiz, Soriano-Jarquin is readily 

distinguishable because the police officer detained the 

passengers at ICE’s express direction.

Third, the defendants assert that the deputies lawfully 

detained Santos because there is no evidence in the record that 

the ICE warrant was civil rather than criminal. But the 

deputies testified that the warrant was for “deportation.” And 

the Supreme Court has long characterized deportation as a civil 

proceeding. See, e.g., Padilla v. Kentucky, 130 S. Ct. 1473, 

1481 (2010);3 United States ex rel. Bilokumsky v. Tod, 263 U.S. 

149, 155 (1923). Therefore, the record does indeed contain 

evidence the ICE warrant was civil in nature. 

More significantly, even if the record had been devoid of 

evidence regarding whether the warrant was civil or criminal, 

the defendants’ argument misses the mark because law enforcement 

officers, not detainees, are responsible for identifying 

evidence justifying a seizure. United States v. Branch, 537 

F.3d 328, 337 (4th Cir. 2008) (“In order to demonstrate 

reasonable suspicion, a police officer must offer ‘specific and 

 3 Padilla characterizes “removal” as a civil proceeding. 

130 S. Ct. at 1481. In 1996, Congress combined “deportation” 

proceedings with “exclusion” proceedings to form a single 

“removal” proceeding. Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. 104-208, § 304(a), 110 Stat. 

3009-587, adding 8 U.S.C. § 1229a.
30

articulable facts’ that demonstrate at least ‘a minimal level of 

objective justification’ for the belief that criminal activity 

is afoot.” (quoting Illinois v. Wardlow, 528 U.S. 119, 123 

(2000))). Consequently, when affirmative evidence does not 

justify a seizure, the seizure violates the Fourth Amendment. 

Therefore, it was the deputies’ responsibility to determine 

whether the warrant was for a criminal or civil immigration 

violation before seizing Santos. And because they did not 

determine that the warrant was criminal in nature (nor could 

they have—because it was not), her detention was unlawful.

Relatedly, the defendants suggest that the ICE warrant was 

criminal because it was included in the National Crime 

Information Center (“NCIC”) database and “the enabling 

legislation for the NCIC provides only that crime records can be 

entered into the database.” Appellee’s Br. at 48 (citing 28 

U.S.C. § 534(a)). We agree with the defendants that there is a 

good argument that Section 534(a)(1), which directs the Attorney 

General to “acquire, collect, classify, and preserve 

identification, criminal identification, crime, and other 

records,” does not authorize inclusion of civil immigration 

records in the NCIC database. See Doe v. Immigration & Customs 

Enforcement, 2006 WL 1294440, at *1-3 (S.D.N.Y. May 10, 2006) 

(explaining that the plain language of Section 534, ordinary 

canons of statutory construction, and legislative history 
31

demonstrate that the government lacks authority to include civil 

immigration records in the NCIC database); Michael J. Wishnie, 

State and Local Police Enforcement of Immigration Laws, 6 U. Pa. 

J. Const. L. 1084, 1095-1101 (2004) (same).

Nonetheless, in the aftermath of the September 11, 2001 

attacks, the Attorney General authorized inclusion of civil 

immigration records in the NCIC database, including information 

on individuals, like Santos, who are the subject of outstanding 

removal orders. John Ashcroft, U.S. Att’y Gen., Prepared 

Remarks on the National Security Entry-Exit Registration System 

(June 6, 2012), available at 

http://www.justice.gov/archive/ag/speeches/2002/060502agprepared

remarks.htm. And ICE continues to populate the NCIC database 

with civil immigration records to the present. See Immigration 

& Customs Enforcement, Fact Sheet: Law Enforcement Support 

Center (May 29, 2012), 

http://www.ice.gov/news/library/factsheets/lesc.htm. Therefore, 

contrary to the defendants’ assertion, the NCIC database does 

indeed include civil immigration records. 

In sum, the deputies violated Santos’s rights under the 

Fourth Amendment when they seized her after learning that she 

was the subject of a civil immigration warrant and absent ICE’s 

express authorization or direction.
32

V.

A.

Even though the deputies violated Santos’s rights under the 

Fourth Amendment, the deputies still may be entitled to 

qualified immunity if the right was not clearly established at 

the time of the seizure. 

The doctrine of qualified immunity “balances two important 

interests-the need to hold public officials accountable when 

they exercise power irresponsibly and the need to shield 

officials from harassment, distraction, and liability when they 

perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 

223, 231 (2009). To that end, qualified immunity protects law 

enforcement officers from personal liability for civil damages 

stemming from “bad guesses in gray areas and ensures that they 

are liable only for transgressing bright lines.” Willingham v. 

Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (internal quotation 

omitted). 

We apply a two-step test to determine whether a municipal 

employee is entitled to qualified immunity. First, we decide 

“whether the facts alleged or shown, taken in the light most 

favorable to the plaintiff, establish that the [government 

official’s] actions violated a constitutional right.” Meyers v. 

Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013). If we 

determine that a violation occurred, we consider whether the 
33

constitutional right was “clearly established” at the time of 

the government official’s conduct. Id. (noting also that the 

Supreme Court “modif[ied] the . . . approach such that lower 

courts are no longer required to conduct the analysis in th[is]

sequence”).

As explained above, the deputies violated Santos’s Fourth 

Amendment rights when they seized her based on the civil ICE 

warrant. See supra Part IV.B. Therefore, the key question is 

whether the constitutional right was “clearly established” when 

the arrest occurred. We apply an objective test to determine 

whether a right is “clearly established,” asking whether “a 

reasonable person in the official’s position could have failed 

to appreciate that his conduct would violate [the] right[].” 

Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) 

(internal quotation omitted). 

Because government officials cannot “reasonably be expected 

to anticipate subsequent legal developments,” the right must 

have been clearly established at the time an official engaged in 

a challenged action. Harlow, 457 U.S. at 818. Nonetheless, 

there need not have been a judicial decision squarely on all 

fours for a government official to be on notice that an action 

is unconstitutional. Meyers, 713 F.3d at 734 (noting that this 

Court “repeatedly ha[s] held that it is not required that a 

right violated already have been recognized by a court in a 
34

specific context before such right may be held ‘clearly 

established’ for purposes of qualified immunity”); see also Hope 

v. Pelzer, 536 U.S. 730, 741 (2002) (stating that “officials can 

still be on notice that their conduct violates established law 

even in novel factual circumstances”).

For three reasons, we conclude that when the deputies 

detained Santos, it was not clearly established that local law 

enforcement officers may not detain or arrest an individual 

based solely on a suspected or known violation of federal civil 

immigration law. First, the Supreme Court did not directly 

address the role of state and local officers in enforcement of 

federal civil immigration law until Arizona v. United States, 

which was decided more than three years after the deputies’ 

encounter with Santos. 

Second, until today, this Court had not established that 

local law enforcement officers may not seize individuals for 

civil immigration violations. Therefore, no controlling 

precedent put the deputies on notice that their actions violated 

Santos’s constitutional rights.

And finally, before Arizona v. United States, our Sister 

Circuits were split on whether local law enforcement officers 

could arrest aliens for civil immigration violations. Compare, 

e.g., United States v. Urrieta, 520 F.3d 569, 574 (6th Cir. 

2008) (“To justify [the defendant’s] extended detention then, 
35

the government must point to specific facts demonstrating that 

[the Sheriff’s] Deputy . . . had a reasonable suspicion that 

[the defendant] was engaged in some nonimmigration-related 

illegal activity.”), with United States v. Vasquez-Alvarez, 176 

F.3d 1294, 1296 (10th Cir. 1999) (“[T]his court has held that 

state law-enforcement officers have the general authority to 

make arrests for violations of federal immigration laws.”). And 

“if there are no cases of controlling authority in the 

jurisdiction in question, and if other appellate federal courts 

have split on the question of whether an asserted right exists, 

the right cannot be clearly established for qualified immunity

purposes.” Rogers v. Pendleton, 249 F.3d 279, 288 (4th Cir. 

2001).

In sum, even though the deputies unconstitutionally seized 

Santos, qualified immunity bars her individual capacity claims 

because the right at issue was not clearly established at the 

time of the encounter.

B.

Santos further argues that even if qualified immunity 

precludes her individual capacity claims, the district court 

improperly dismissed her claims against the Frederick County 

Board of Commissioners and against Sheriff Jenkins and Deputies 

Openshaw and Lynch in their official capacities. Plaintiffs 
36

alleging constitutional injuries may bring suits under Section 

1983 against municipalities for unconstitutional actions taken

by their agents and employees. Monell v. Dep’t of Social Servs.

of the City of New York, 436 U.S. 658, 691 (1978). Likewise, a 

plaintiff may bring a Section 1983 action against governmental

officials in their official or representative capacity. Hafer 

v. Melo, 502 U.S. 21, 25 (1991). For purposes of Section 1983, 

these official-capacity suits are “treated as suits against the 

[municipality].” Id.

The Supreme Court has emphasized, however, that municipal

liability under Section 1983 does not amount to respondeat 

superior. Monell, 436 U.S. at 691. Consequently, a 

municipality is subject to Section 1983 liability only when its 

“policy or custom, whether made by its lawmakers or by those 

whose edicts or acts may fairly be said to represent official 

policy, inflicts the [plaintiff’s] injury . . . .” Id. at 694. 

The requirement that the allegedly unconstitutional act stems

from an established municipal policy or the actions of a final 

policymaker ensures that the municipality is “responsible” for 

the alleged violations of a plaintiff’s constitutional rights. 

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

Unlike with government officials sued in their individual 

capacity, qualified immunity from suit under Section 1983 does 

not extend to municipal defendants or government employees sued 
37

in their official capacity. Owen v. City of Independence, Mo., 

445 U.S. 622, 650 (1980).

The district court dismissed Santos’s official-capacity 

claims and claims against the Frederick County Board of 

Commissioners because it concluded that the deputies did not 

violate Santos’s Fourth Amendment rights. Santos, 884 F. Supp. 

2d at 432. Because we hold that the deputies violated Santos’s 

Fourth Amendment rights when they seized her solely on the basis 

of the civil ICE warrant and because qualified immunity does not 

extend to municipal defendants, this was error. 

Having (erroneously) determined that the deputies did not 

violate Santos’s constitutional rights, the district court did 

not have occasion to address whether the municipal defendants 

were “responsible” for the deputies’ conduct. Therefore, on 

remand, the district court should determine whether the 

deputies’ unconstitutional actions are attributable to an 

official policy or custom of the county or the actions of a 

final county policymaker.

VI.

In sum, the district court correctly concluded that the 

deputies seized Santos when Openshaw gestured for her to remain 

seated after the deputies learned of the outstanding civil ICE 

removal warrant. But because knowledge that an individual has 
38

committed a civil immigration violation does not constitute 

reasonable suspicion or probable cause of a criminal infraction, 

the district court erred in holding that Santos’s seizure did 

not violate the Fourth Amendment. 

Nonetheless, the deputies are entitled to qualified 

immunity because the right at issue was not clearly established 

at the time of the encounter. Qualified immunity does not 

extend, however, to municipal defendants, and thus the district 

court erred in dismissing Santos’s municipal and officialcapacity claims.

Therefore, we affirm the district court’s decision 

regarding Santos’s individual-capacity claims, vacate its 

decision regarding her municipal and official-capacity claims, 

and remand the case to the district court for further 

proceedings in accordance with this opinion. 

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED