# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2011 Decided August 10, 2012

No. 10-7060

L AURA E LKINS AND J OHN R OBBINS

,

A PPELLANTS /C ROSS -A PPELLEES

v.

D ISTRICT OF C OLUMBIA

, ET AL

., A PPELLEES /C ROSS -A PPELLANTS

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-appella nts. With her on the briefs

were Irvin B. Nathan , Attorney General, Todd S. Kim

, Solicitor General, and Donna M. Murasky , Deputy Solicitor.

Before: S ENTELLE

, Chief Judge , B ROWN and G RIFFITH

, Circuit Judges

.2

Opinion for the Court filed by Circuit Judge G RIFFITH

.

G RIFFITH

, Circuit Judge : Laura Elkins and her husband John Robbins brought suit against the District of Columbia and some of its officials allegi ng 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 th e plaintiffs’ claims.

I

In 2001, Laura Elkins 1 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 stru ctures. Elkins obtained permits, but once cons truction began her neighbors complained. In March 2002, one of them sued Elkins and the District in D.C. Superior Cour t seeking to halt the renovation. The court dismissed the suit, concluding that the permits were valid. In doing so, th e 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 with in the DCRA, his predecessor J. Gregory Love, and David Maloney, Acting Director of

1 Throughout this litigation, the pa rties 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 constructio n exceeded their scope. Largely due to their concerns, the Dist rict issued four stop work
orders 2 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, Fo rd issued Elki ns a notice of violation of a stop work order. See D.C. M UN

. R EGS . tit. 12A, § 113.2. Elkins and the District officials continued to clash over the type of pe rmits and building plans necessary to
authorize continued construc tion for several months. On March 10, 2003, Noble sent a lett er requesting an on-site inspection, but Elkins refuse d. In response, DCRA sought from Superior Court an admi nistrative search warrant to inspect Elkins’s home for eviden ce of illegal construction. Noble signed the affidavit in support of the warrant. The affidavit set forth the grounds fo r 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 sear ch 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.

M UN

. R EGS . 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 vigo rously 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 assi sting DCRA with the search,
took from her. The District re turned 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 Admini strative Hearings (OAH). Id.

In March 2004, while the OAH proceedings were underway, Elkins brought this su it 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 defe ndants’ “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 se arch of her home: documents5

from her notebook, photos taken, and written accounts from those present during the searc h. OAH allowed the use of the photos and reports from the sear ch, 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 not hing about seizing them, or anything else. Id. at 21-22. After three se parate 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, th e district court took up Elkins’s lawsuit again, addr essing the parties’ dueling, updated motions for summary judgment. On December 12, 2007, the district court agreed wi th the District that Elkins was collaterally estopped from pursuing her substantive due process claim because of OAH’s determination that the
District and its official s had acted in good faith. Elkins I , 527 F. Supp. 2d at 50. The district c ourt likewise reje cted 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 agai nst the Mayor in his official capacity are treated as claims ag ainst the District), the court rejected the assertion of qualified immunity from the6

remaining officials and ordere d discovery on the issue of liability. Id. at 51.

Following discovery, the defendants moved again for summary judgment, arguing that no ne of them were liable for
the seizure of the notebook. The district court dismissed the
District because Elki ns 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 reconsider ation challenging Maloney’s dismissal from the suit and the application of collateral estoppel to her Fourth Amendmen t 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 a ppeal, 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 stipulat ed 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 gran t 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 li ght 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.” F ED

. R. C IV

. 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 distri ct court erred in concluding
that the defendants did not abridge her Fifth Amendment rights to procedural and s ubstantive due process. Her argument about procedure, however, suffers from a fundamental flaw. To state a pr ocedural 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 suggesti ng what sort of process is due . . . .”). Elkins’s compla int 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 defenda nts “deliberately flout[ed]” the
law and “trammeled” Elkins’s property rights by engaging in “outrageous” conduct. Compl. 6-9. Such allegations may8

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 cons truction permits. We have previously held that individua ls 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]n ce a property interest is found, . . . the doctrine of substa ntive 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 st ate law prompted by personal or group animus, or a deliberate flouting of the law that trammels significant persona l or property rights.” Silverman v. Barry , 845 F.2d 1072, 1080 (D.C. Cir. 1988). By contrast, “[i]nadvertent errors, honest mi stakes, 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 o fficials in Superior Court that the permits were validly issued. But that testimony, credited as it was by the court, tells on ly part of the story. OAH later
found that the officials who trie d 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 nei ghborhood. 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 scope9

of the actual construction are gr avely 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 e xplicit textual source of constitutional protection’ ag ainst 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 Elki ns first raised this argument below, the district court held that she could not challenge the legality of the s earch because OAH had already ruled it
lawful. Elkins I , 527 F. Supp. 2d at 46. To Elkins’s subsequent assertion that a “m anifestly erroneous” ruling is not entitled to preclusive effect, the district court replied that, far from being “manifestly erroneous,” the OAH decision was10

correct. Elkins IV , 685 F. Supp. 2d at 4-5. We agree and thus
need not consider whether coll ateral 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 particul arly describing the place to be searched, and the persons or things to be seized.” U.S.
C ONST . 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 unc onstitutional.”). 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 becau se 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 th e 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 evid ence 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, wit hout seizing anything.

The Court followed these principles in Groh , holding the
search to seize firearms unlaw ful 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 posse ssion 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 warra nt listed her address and explained that the search wa s for “unlicensed construction
work which is in violation of the Construction Codes.” Defs.’
Mot. to Dismiss Ex. 10. Ther e is no indication that the officials envisioned seizing a ny documents when they sought the warrant. Instead, as explaine d in more detail below, therecord shows the seizure of documents was a spur-of-themoment response to the instruct ions 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 su fficiently particular. An
administrative search warrant need not describe things to be
seized when none are meant to be seized. Of course, any12

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 justifie d 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 unreas onable 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 particul arity 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 partic ularity 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 pow er, the most destructive of English liberty and the fundament al 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, describi ng 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 fundamental13

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 establishe d 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, El kins 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 cour t 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 w ithout probable cause in order to14

defeat their due process rights in building permit disputes.” Compl. ¶ 11. The District challe nged 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 dist rict 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 er ror, 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, which15

was not responsible for the wa rrant 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 actu ally establishes that DCRA, not HPO, directed her to par ticipate 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 warra nt 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 liablebecause he failed to properly train and supervise WilliamsCherry. The district court concl uded 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 s how 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 reco rd shows, at best, “mere negligence,” not an “affirma tive 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 vi olation occurring due to poor training or supervision would have been highly likely, not simply foreseeable. Id. at 1261. Supervisory liability under16

§ 1983 is triggered only when a supervisor fails to provide more stringent training in th e wake of a history of past transgressions by the agency or provides training “so clearly deficient that some depr ivation of rights will inevitably result
absent additiona l 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 j udgment against Love, finding there were factual disputes abou t 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 fa vor as a matter of law. Elkins V

, 710 F. Supp. 2d at 62. On app eal, Elkins argues that the
district court erred in de nying her motion for summary judgment against Love, relying entirely, as did the district court, on two piec es of evidence: Love’s May 2002 instruction to Vincent Ford, DCRA’s chief building inspector, to “find a way” to stop the wo rk 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 against17

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 L ove’s testimony that he was not
involved in either of those decisions. See Haynes v. Williams

, 392 F.3d 478 (D.C. Cir. 2004) (“Th e 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 em phasized that a draft of an affidavit supporting the applicat ion did ask for authority to
seize documents. Id. But there is no evidence Noble ever saw the draft, and, of course, it wa s 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 wa rrant would be used only to conduct a visual inspection, not to seize documents, and that he was “surprised” to learn later that documents had been18

taken. Id. at 39:7-41:9, 101:15-104:16. Consistent with that testimony, there is simply no ev idence 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 e fforts to stop the renovations make him somehow liable for the seizure. But the stop work orders and the requests to insp ect the construction at her home have no bearing on whether Noble caused documents to be improperly seized. There is no ev idence 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 su mmary 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. Elkinsresponds that this argument is waived because WilliamsCherry failed to raise it before the district court. Appellants’ Reply Br. 32; see also District of Co lumbia 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 (“Qu alified 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 su mmary judgment against her.

Qualified immunity protects government officials “from liability for civil damages inso far 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 th at his conduct wa s 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 s ubjected to suit, officers are on
notice their conduct is unlawfu l”). The doctr ine “gives government officials breathing ro om 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 clear ly established that seizing
items based on a warrant that does not authorize such seizure is unconstitutional. In doing s o, the district court misapplied the “clearly established” inquir y. 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 whethe r 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 MPD officers and officials from
DCRA and HPO. The MPD officer s 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. Wh en 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 documen ts, 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 wa s a violation of the Fourth
Amendment. Saucier , 533 U.S. at 202. Williams-Cherry was but a junior member of the se arch 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 pe rmissible scope of the search and relied upon the judgment of her supervisor and the police officer in charge. We do not fi nd 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 im munity shield an officer from personal liability when an officer reasonably believes that his or her conduct complie s with the law.”).

Several other circuits have addressed the reasonableness
of an inferior officer’s reli ance 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 reas onable 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 themselv es 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 natu re and scope of the warrant,
their reliance on leaders’ re presentations 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 official22

“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 o fficer 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 investig ation). Whether an official’s reliance is reasonable will always turn on severa l 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 excep t 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

.