[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10343

____________________

CLARISSA GILMORE, 

Plaintiff-Appellant,

versus

GEORGIA DEPARTMENT OF CORRECTIONS,

an agency of the State of Georgia, 

COMMISSIONER, GEORGIA DEPARTMENT OF 

CORRECTIONS, 

in his official capacity, 

ALBERTA W. MILTON,

individually and in her official capacity, 

SABRINI CARLENE LUPO, 

individually and in her official capacity, 

SMITH SP WARDEN,

in his official capacity as successor-in-interest,

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 1 of 43
2 Opinion of the Court 23-10343

et al.,

Defendants-Appellees,

DOUGLAS M. WILLIAMS,

individually and in his official capacity, 

Defendant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 6:18-cv-00115-RSB-CLR

____________________

Before ROSENBAUM, NEWSOM, and TJOFLAT, Circuit Judges.

ROSENBAUM, Circuit Judge:

“There can be no doubt that a strip search is an invasion of 

personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 

393, 395 (10th Cir. 1993). Indeed, the Seventh Circuit has described 

strip searches that involve inspection of the anal and genital areas 

as “demeaning, dehumanizing, undignified, humiliating, terrifying, 

unpleasant, embarrassing, repulsive, signifying degradation and 

submission.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272

(7th Cir. 1983) (citation and internal quotation marks omitted). 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 2 of 43
23-10343 Opinion of the Court 3

And the Tenth and Eighth Circuits have recognized that a “strip 

search, regardless how professionally and courteously conducted, 

is an embarrassing and humiliating experience.” Boren v. Deland, 

958 F.2d 987, 988 n.1 (10th Cir. 1992) (quoting Hunter v. Auger, 672 

F.2d 668, 674 (8th Cir. 1982). So it’s not surprising that the Supreme 

Court has said that this type of search “instinctively gives us the 

most pause.” Bell v. Wolfish, 441 U.S. 520, 558 (1979).

This case involves a strip search of a civilian visiting a prison. 

When Plaintiff-Appellant Clarissa Gilmore was visiting her incarcerated husband, officers strip-searched her, leaving her “completely and utterly humiliated.” During the search, an officer manipulated Gilmore’s breasts, ordered her to “bend over,” and “felt 

in between” her buttocks with a gloved hand. The officers did not 

inform Gilmore of the reasons for the search, and the search revealed no contraband.

Gilmore sued, claiming that the officers violated her Fourth 

Amendment right to be free from unreasonable searches and seizures. See U.S. Const. amend. IV. The district court granted summary judgment to the officers. In doing so, it found that the search 

did not violate clearly established law, so the officers were entitled 

to qualified immunity. We conclude that the officers’ strip search 

violated Gilmore’s constitutional rights. But a line of Supreme 

Court precedent authorizes blanket strip searches of prisoners for 

security reasons, and no Supreme Court or Eleventh Circuit precedent expressly prohibits blanket searches of prison visitors. And 

while our sister circuits have uniformly rejected suspicionless strip 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 3 of 43
4 Opinion of the Court 23-10343

searches of prison visitors, our precedent precludes us from considering that precedent in the “clearly established” inquiry. So we 

must agree with the district court that the law was not “clearly established” when Gilmore’s strip search occurred. Therefore, after 

careful consideration, and with the benefit of oral argument, we 

affirm the district court’s grant of summary judgment.

I. BACKGROUND

A. Factual Background1

Gilmore’s then-husband was incarcerated at Smith State 

Prison in Glenville, Georgia. Gilmore visited him twice a month. 

On February 26, 2017, Gilmore arrived at the prison, as she had 

roughly fifty times before, and proceeded through the security 

screening. That meant going through three types of searches: a 

pat-down search, a metal-detector wand, and an electromagneticradiation body scan. During the security screening, Gilmore encountered at least four officers.

After Gilmore cleared the security screening, correctional 

officers escorted her to a second building, which contained the visitation room. Officer Sabrini Lupo assigned Gilmore to a visitation 

table, where her husband joined her, and their visit began. Officer 

1 Because we review an order granting summary judgment against Gilmore, 

we recount the facts in the light most favorable to her. See Marbury v. Warden, 

936 F.3d 1227, 1232 (11th Cir. 2019). Many of the facts are contested.

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 4 of 43
23-10343 Opinion of the Court 5

Lupo and Lieutenant Milton remained present in the visitation 

room during the visit.

About thirty minutes into the visit, Gilmore noticed that 

Lieutenant Milton was staring at her. Gilmore stared back for “one 

to two minutes.” In apparent response, Lieutenant Milton walked 

past Gilmore and returned to the front of the room, where she 

spoke to the other officers. Then, Lieutenant Milton left the visitation room to get Officer Christina Irizarry. When Lieutenant Milton returned, she told Gilmore to go with her.

Lieutenant Milton and Officer Irizarry took Gilmore into an 

empty bathroom and handed her a strip-search approval form. 

That form was blank and lacked approval signatures from prison 

officials. Gilmore asked why the officers were going to search her, 

but Lieutenant Milton refused to tell her. Gilmore also asked if she 

could speak with Lieutenant Milton’s supervisor, but Lieutenant 

Milton responded that she was the officer in charge that day.

The officers insisted that Gilmore sign the strip-search approval form. If she didn’t, they said, Gilmore would be sent to jail 

and would be unable to visit her husband at the prison again. Not 

only that, Lieutenant Milton told her, the officers would “search 

[her] anyway.” Gilmore “didn’t feel like [she] had an option,” so 

she signed the form.

After Gilmore signed the form, Lieutenant Milton instructed 

her to remove her clothes, including her bra and underwear. Gilmore complied. Officer Irizarry examined Gilmore’s clothing for 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 5 of 43
6 Opinion of the Court 23-10343

contraband but found nothing. When Officer Irizarry finished, at 

Lieutenant Milton’s direction, she manually searched Gilmore. 

Officer Irizarry manipulated Gilmore’s breasts, lifting each 

breast and looking underneath it. Lieutenant Milton then ordered 

Gilmore to “[t]urn around,” “bend over,” and “open [her] butt 

cheeks.” Gilmore did so, and Officer Irizarry “felt in between” Gilmore’s buttocks with her gloved hand. The officers also instructed 

Gilmore to spread her vagina, which they visually inspected. Finding no contraband, the officers told Gilmore to put her clothes back 

on and permitted her to resume her visit.

Officer Irizarry led Gilmore back to the visitation room and 

told Gilmore that she was “so sorry.” Although Gilmore stayed until visitation ended, she and her husband were upset and “tearing 

up,” and they barely spoke. Gilmore left the prison and cried 

through the drive home.

Two days later, Gilmore called Deputy Warden Tamarshe 

Smith to complain and ask why she had been searched. Deputy 

Warden Smith seemed unaware of the incident. He told Gilmore 

that he would look into it and call her back. A few days later, Gilmore spoke to Deputy Warden Smith again. During this second 

call, Deputy Warden Smith apologized and “said that he did not see 

anything on the video” footage of the visitation room “that would 

warrant a strip search.” Deputy Warden Smith denies that this second call occurred.

At her deposition, Officer Lupo claimed that during Gilmore’s visit to the prison, Officer Lupo smelled marijuana on 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 6 of 43
23-10343 Opinion of the Court 7

Gilmore and shared her observation with Lieutenant Milton. Officer Lupo also testified that she found it suspicious that Gilmore 

was staring at her and Lieutenant Milton. But Lieutenant Milton 

and Officer Irizarry’s witness statements, which they made the 

same day as the incident, did not mention any marijuana odor or 

suspicious eye contact. Nor did the strip-search approval form, 

which stated only that Gilmore was “[u]nder suspicion for carrying 

contraband.” And Gilmore denies consuming, possessing, or

smelling like marijuana at any point before or during her visit. Gilmore also denies staring at Officer Lupo during her visit. 

As for Lieutenant Milton, she testified that she called Defendant Deputy Smith before conducting the search, and Smith 

gave her verbal approval.2 But Lieutenant Milton’s contemporaneously sworn statement contains no reference to any such call. And 

duty records show that Deputy Warden Smith was not working 

that day.

B. Procedural History

Gilmore sued the Georgia Department of Corrections, 

Commissioner Douglas Williams, Lieutenant Milton, Officer 

Lupo, Officer Irizarry, and Deputy Warden Smith under 42 U.S.C. 

2 The Georgia Department of Corrections’ regulations provide that, “No strip 

search shall be conducted until the Strip Search Approval Form . . . is signed 

by one of the following designees: . . . Warden or Deputy Warden . . . Administrative Duty Officer or the Officer in Charge with verbal approval of the Administrative Duty Officer.”

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 7 of 43
8 Opinion of the Court 23-10343

§ 1983, claiming that they violated her Fourth Amendment right to 

be free from unreasonable searches and seizures. That included a 

failure-to-intervene claim against Officer Lupo, Deputy Warden 

Smith, and Commissioner Williams. Gilmore also alleged several 

state-law claims, none of which are relevant to this appeal, so we 

discuss them no further.

Defendants moved to dismiss all claims except the Fourth 

Amendment claim, and the district court granted that motion. The 

district court also dismissed Gilmore’s failure-to-intervene claim 

against Officer Lupo and Deputy Warden Smith.

After discovery, Defendants moved for summary judgment. 

The magistrate judge requested supplemental briefing on whether 

the individual Defendants were acting within the scope of their discretionary authority when they performed the strip search. Although Defendants filed a responsive brief, Gilmore did not. 

The magistrate judge issued a report and recommendation 

(“R&R”) recommending that the district court grant Defendants’ 

summary-judgment motion. The R&R concluded that Defendants 

acted within the scope of their discretionary authority, and it was 

not “clearly established” that reasonable suspicion (or any suspicion) was required for a strip search of a prison visitor. As for Gilmore’s supervisory-liability claim against Deputy Warden Smith, 

the magistrate judge recommended summary judgment in his favor.

Gilmore objected to the R&R. She argued that case law 

clearly established that suspicionless searches of prison visitors 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 8 of 43
23-10343 Opinion of the Court 9

violated the Fourth Amendment and that the strip search exceeded 

constitutional limits. But Gilmore did not challenge the R&R’s 

finding that the individual Defendants acted within the scope of 

their discretionary authority.

The district court adopted the R&R and granted summary 

judgment to Defendants. Like the magistrate judge, it found that 

the individual Defendants acted within the scope of their discretionary authority and did not violate clearly established law.

Gilmore timely appealed. On appeal, Gilmore does not challenge the grant of summary judgment on her supervisory-liability 

claim against Deputy Warden Smith. Rather, she asserts that the 

district court erred in granting summary judgment to the other individual Defendants on qualified-immunity grounds for two reasons: (1) because Defendants did not act within the scope of their 

discretionary authority, and (2) because clearly established law required reasonable suspicion for the search.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, construing all evidence in the light most favorable to the non-moving party. 

Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019). For summary-judgment motions based on qualified immunity, “we are required to resolve all issues of material fact in favor of the plaintiff.” 

Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

III. DISCUSSION

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 9 of 43
10 Opinion of the Court 23-10343

Summary judgment is appropriate when no genuine issue 

of material fact exists and the moving party is entitled to judgment 

as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 

U.S. 317, 322–23 (1986). An issue is genuine if a reasonable trier of 

fact could return judgment for the non-moving party. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is material if 

it “might affect the outcome of the suit under the governing law” 

and is not “irrelevant or unnecessary.” Id. 

Here, the district court granted summary judgment on Gilmore’s Fourth Amendment claim. In doing so, it found that the 

individual Defendants were entitled to qualified immunity.

Qualified immunity shields officers from civil liability so 

long “as their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would have 

known.” Carruth v. Bentley, 942 F.3d 1047, 1053 (11th Cir. 2019) 

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The “central 

idea” of qualified immunity “is this pragmatic one: officials can act 

without fear of harassing litigation only when they can reasonably 

anticipate—before they act or do not act—if their conduct will give 

rise to damage for liability for them.” Maddox v. Stephens, 727 F.3d 

1109, 1120 (11th Cir. 2013) (quoting Foy v. Holston, 94 F.3d 1528, 

1534 (11th Cir. 1996)).

To be entitled to qualified immunity, Defendants must show

that they acted “within the scope of [their] discretionary authority”

when they strip-searched Gilmore. See Mikko v. City of Atlanta, 857 

F.3d 1136, 1143–44 (11th Cir. 2017) (citation and internal quotation 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 10 of 43
23-10343 Opinion of the Court 11

marks omitted). If Defendants make that showing, the burden 

shifts to Gilmore to prove that (1) Defendants’ conduct violated a 

constitutional right; and (2) that right was “clearly established” at 

the time. See Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018). And 

each defendant must receive “an individualized analysis of whether 

[she] is entitled to qualified immunity.” Id. at 952. 

Following the criteria for qualified immunity, our analysis 

proceeds in three parts. First, we explain that Gilmore abandoned 

any challenge to Defendants’ discretionary-authority showing by 

failing to object to that portion of the R&R. Second, we determine 

that Defendants’ strip search violated Gilmore’s constitutional 

rights. Third, we conclude that Defendants did not violate clearly 

established law, so they are entitled to qualified immunity. 

A. Gilmore abandoned any challenge to the district court’s 

discretionary-authority determination.

An officer acted within the scope of her discretionary authority if she “was (a) performing a legitimate job-related function 

(that is, pursuing a job-related goal), (b) through means that were 

within [her] power to utilize.” Holloman ex rel. Holloman v. Harland, 

370 F.3d 1252, 1265 (11th Cir. 2004). Where, as here, the plaintiff 

alleges that the officer’s conduct was unlawful, we do not merely 

determine “whether it was within the defendant’s authority to 

commit the allegedly illegal act.” Harbert Int’l, Inc. v. James, 157 F.3d 

1271, 1282 (11th Cir. 1998). Rather, we ask “whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of [the officer’s]

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 11 of 43
12 Opinion of the Court 23-10343

discretionary duties.” Id. (citation and internal quotation marks 

omitted). In other words, we “remove the constitutional taint” 

from the inquiry. Holloman, 370 F.3d at 1266.

Gilmore argues that the strip search exceeded the scope of 

Lieutenant Milton and Officer Irizarry’s discretionary authority. In 

her view, that’s so because Lieutenant Milton and Officer Irizarry 

violated three of their own regulations: (1) they failed to obtain supervisory approval before conducting the strip search; (2) they conducted a manual body-cavity search when only visual inspection 

was permitted; and (3) they coerced Gilmore to sign the consent 

form. But we do not reach those arguments, because Gilmore 

failed to raise them in the district court. 

Although Gilmore had at least three opportunities to challenge the district court’s discretionary-authority determination, 

she did not do so. First, she did not make any discretionary-authority arguments in her opposition to Defendants’ motion for summary judgment. Second, she did not file a supplemental brief on 

the discretionary-authority issue, even though the magistrate judge 

specifically solicited that briefing. Third, in her objections to the 

R&R, Gilmore did not challenge the magistrate judge’s finding that 

Defendants acted within their discretionary authority. So as a general matter, Gilmore cannot make a discretionary-authority argument for the first time on appeal. See, e.g., T.R. ex rel. Brock v. Lamar 

Cnty. Bd. of Educ., 25 F.4th 877, 885 (11th Cir. 2022).

That rule, though, is not absolute. When a plaintiff fails to 

object to an R&R or to respond to the defendant’s arguments in the 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 12 of 43
23-10343 Opinion of the Court 13

district court, “we, at most, review the appeal ‘for plain error if 

necessary in the interests of justice.’” Dupree v. Owens, 92 F.4th 999, 

1004 (11th Cir. 2024) (quoting 11th Cir. R. 3-1). In such a case, we 

apply the “heightened civil plain error standard,” under which “we 

will review for plain error only if the issue involves a pure question 

of law, and if refusal to consider it would result in a miscarriage of 

justice.” Roy v. Ivy, 53 F.4th 1338, 1351 (11th Cir. 2022) (citation and 

internal quotation marks omitted); see also Access Now, Inc. v. Sw. 

Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004).

Gilmore’s discretionary-authority issue fails at the first step. 

That is, the discretionary-authority determination is not “a pure 

question of law.” See id. Rather, it presents a mixed question of 

law and fact. True, we must define the bounds of the officers’ authority, which requires us to interpret law and regulations. But we 

must then apply the law to the facts to determine whether the officers’ search fell within that authority. See Mikko, 857 F.3d at 1144. 

Because Gilmore’s discretionary-authority argument does not present a pure legal question, we do not review it. 

Instead, we apply the two-prong qualified-immunity framework. 

B. Defendants’ strip search violated Gilmore’s Fourth 

Amendment rights. 

Again, the first prong of that framework requires us to ask 

whether the search violated Gilmore’s constitutional rights. See Alcocer, 906 F.3d at 951. We conclude that it did. 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 13 of 43
14 Opinion of the Court 23-10343

The Fourth Amendment prohibits “unreasonable searches 

and seizures.” U.S. Const. amend. IV. For that reason, the “ultimate 

touchstone of the Fourth Amendment is ‘reasonableness.’” 

Brigham City v. Stuart, 547 U.S. 398, 403 (2006). We apply a twofold 

inquiry to determine whether a search was reasonable: we ask 

whether the search was (1) “justified at its inception” and (2) “reasonably related in scope to the circumstances which justified the 

interference in the first place.” New Jersey v. T.L.O., 469 U.S. 325, 341 

(1985) (citation and internal quotation marks omitted). Here, neither Defendants’ justification for the strip search nor the scope of 

the manual body-cavity search was reasonable.3 

1. Justification for the Search

Until now, neither we nor the Supreme Court has explicitly 

defined the standard for strip searches of a free person visiting a jail 

or prison. We now hold that correctional officers must have at least 

reasonable suspicion that a visitor is concealing contraband (e.g., 

drugs or weapons) before they may strip-search that visitor. 

As relevant here, Supreme Court precedent on prison 

searches accounts for two important considerations. First, the Supreme Court has characterized prison as “a unique place fraught 

with serious security dangers. Smuggling of money, drugs, 

3 We use the term “manual body-cavity search” as well as the umbrella term 

“strip search.” See Search, Black’s Law Dictionary (11th ed. 2019) (defining 

“manual body-cavity search” as “[a] strip search in which the police engage in 

some touching or probing of a person’s orifices”); see also Parkell v. Danberg, 

833 F.3d 313, 327 (3d Cir. 2016).

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 14 of 43
23-10343 Opinion of the Court 15

weapons, and other contraband is all too common an occurrence.” 

Bell v. Wolfish, 441 U.S. 520, 559 (1979). But second, prisoners and 

civilians “stand in wholly different circumstances, separated by the 

harsh facts of criminal conviction and incarceration.” T.L.O., 469 

U.S. at 338 (citation and internal quotation marks omitted). To 

show how we reconcile these considerations, we briefly review 

three cases involving strip searches of detainees or prisoners, where 

these considerations played an important role in the analysis: Bell, 

441 U.S. 520; Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en 

banc); and Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012). 

First, in Bell, the Supreme Court upheld as reasonable under 

the Fourth Amendment a blanket policy that required prisoners “to 

expose their body cavities”—including their “vaginal and anal cavities”—“for visual inspection as a part of a strip search conducted 

after every contact visit a prisoner had with a person from outside 

the institution.” See 441 U.S. at 558 & n.39. In support of its conclusion, the Court recognized the prison’s “significant and legitimate security interests” in preventing the introduction of contraband. See id. at 560. But because strip searches “may invade the

[prisoners’] personal privacy,” the Court said, officers may not conduct them “in an abusive fashion.” Id.

Next, in Powell, we held that “a policy or practice of strip 

searching all arrestees as a part of the process of booking them into 

the general population of a detention facility, even without reasonable suspicion to believe that they may be concealing contraband” 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 15 of 43
16 Opinion of the Court 23-10343

did not violate the Fourth Amendment. See 541 F.3d at 1300, 1314. 

We limited our holding, though, to cases “where the strip search is 

no more intrusive than the one the Supreme Court upheld in Bell” 

and is “not conducted in an abusive manner.” Id. Unlike here, the 

plaintiffs did not challenge the scope of the search. See id. at 1301.

Finally, in Florence, the Supreme Court upheld a jail’s blanket 

policy of strip-searching detainees before the jail admitted them to 

general population. See 566 U.S. at 324, 339. The Court characterized the detection of contraband as “a most serious responsibility,” 

given its potential to “disrupt the safe operation of a jail” or prison. 

Id. at 332. Given those “legitimate penological interests,” the 

Court reasoned, strip searches (including visual body-cavity 

searches) did not violate the detainees’ Fourth Amendment rights. 

Id. at 326, 339 (citation and internal quotation marks omitted). Notably, the strip searches at issue did “not include any touching of 

unclothed areas”—and the Court declined to address what it characterized as the “legitimate concerns about the invasiveness” of 

such searches. Id. at 325, 339. 

To that end, the Court was careful to limit Florence to its context. See id. Multiple Justices, writing separately, also emphasized 

those limitations. For instance, Chief Justice Roberts said that “it 

is important for me that the Court does not foreclose the possibility 

of an exception to the rule it announces.” Id. at 340 (Roberts, C.J., 

concurring). And Justice Alito cautioned that “[t]he Court does not 

address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 16 of 43
23-10343 Opinion of the Court 17

the arrestee’s detention has been reviewed by a judicial officer.” Id.

at 341 (Alito, J., concurring). For his part, Justice Breyer explained 

that “[t]he case is limited to strip searches of those arrestees entering a jail’s general population.” Id. at 342 (Breyer, J., dissenting).

In other words, Florence does not stand for the proposition 

that suspicionless strip searches aimed at detecting contraband in a 

jail or prison are per se lawful—even for arrestees, detainees, or prisoners. 

Rather, collectively, these opinions tell us that, for security 

reasons, arrestees, detainees, and prisoners may be searched without suspicion in certain circumstances. But none of these cases involved a free person. And a free person visiting a prison is in a 

different position for Fourth Amendment purposes than a prisoner 

or detainee. See Padgett v. Donald, 401 F.3d 1273, 1278 (11th Cir. 

2005) (“Prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison, but they do not 

enjoy the same Fourth Amendment rights as free persons.” (citations and internal quotation marks omitted)). 

Gilmore, of course, was a free person when the events here 

occurred. She was not an arrestee, a detainee, or a prisoner. And 

she was not bound for the jail’s general population.4 Nor, accepting 

4 Sister circuits have limited Florence to authorizing strip searches of detainees 

joining the general jail population only. See Fonder v. Sheriff of Kankakee Cnty., 

823 F.3d 1144, 1146 (7th Cir. 2016); Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 

962 F.3d 1204, 1237 (10th Cir. 2020). Another circuit found a blanket policy of 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 17 of 43
18 Opinion of the Court 23-10343

Gilmore’s version of the facts, did Defendants have reasonable suspicion to believe that she was carrying contraband. Defendants 

also did not strip-search Gilmore under a blanket policy. So Bell, 

Powell, and Florence are not instructive as to whether a suspicionless 

strip search of Gilmore was “reasonable” under the Fourth Amendment.

Since Bell, Powell, and Florence do not resolve this case, we 

consider cases from outside the prison context. Those cases support a reasonable-suspicion requirement. 

For instance, to strip-search an arrestee, “an officer must 

have at least a reasonable suspicion that the strip search is necessary 

for evidentiary reasons”—and that standard may be “higher” where 

“the search includes touching genitalia and penetrating anuses.” 

Evans v. Stephens, 407 F.3d 1272, 1279–80 (11th Cir. 2005) (en banc); 

see also Cuesta v. Sch. Bd. of Miami-Dade Cnty., 285 F.3d 962, 969 (11th 

Cir. 2002) (“the Fourth Amendment requires jail officials to have 

‘reasonable suspicion’ that an arrestee is concealing weapons or 

contraband before they can perform a strip search”); United States 

v. York, 578 F.2d 1036, 1041 (5th Cir. 1978);5 cf. also Terry v. Ohio, 392 

U.S. 1, 21–22, 27 (1968) (requiring reasonable suspicion to “stopand-frisk” a detainee). It would make little sense to impose a 

routine visual body-cavity searches of prisoners who had not recently been in 

contact with the outside world to be unreasonable. Parkell, 833 F.3d at 330.

5 All Fifth Circuit decisions issued by the close of business on September 30, 

1981, are binding precedent in this Court. Bonner v. City of Prichard, 661 F.2d 

1206, 1207 (11th Cir. 1981) (en banc). 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 18 of 43
23-10343 Opinion of the Court 19

higher standard for strip searches of arrestees, whom officers have 

probable cause to suspect of criminal wrongdoing, than civilians 

visiting prisons.

Though of course not precisely on point, precedent from 

the school context is also instructive. There, we require “reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing” before school officials may strip-search a 

student. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 

(2009); see also T.R., 25 F.4th at 882, 885, 888 (strip searches of student, during which officials asked the student to “lift her breasts” 

and “bend over,” based on a “general possibility” that the student 

was concealing marijuana, were constitutionally unreasonable). 

Similarly, we have required reasonable suspicion “for highly 

intrusive searches of a person’s body such as a strip search or an xray examination” at the border. United States v. Alfaro-Moncada, 607 

F.3d 720, 729 (11th Cir. 2010); see also Brent v. Ashley, 247 F.3d 1294, 

1302 (11th Cir. 2001) (requiring “particularized and objective evidence that would raise reasonable suspicion” for strip search of border entrant); United States v. Afanador, 567 F.2d 1325, 1329 (5th Cir. 

1978) (requiring “reasonable suspicion” for strip searches at the border). This line of cases is particularly notable because, in most circumstances, we do not require any suspicion for any border 

searches. See United States v. Vergara, 884 F.3d 1309, 1312 (11th Cir. 

2018). Rather, given the natural security and sovereignty interests 

at stake, most border searches “are reasonable simply by virtue of 

the fact that they occur at the border.” See United States v. Ramsey,

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 19 of 43
20 Opinion of the Court 23-10343

431 U.S. 606, 616 (1977). Yet our precedent draws the reasonablesuspicion line at “highly intrusive” strip searches. See AlfaroMoncada, 607 F.3d at 729. 

So we require reasonable suspicion for strip searches of arrestees, students, and border entrants. We now extend that reasonable-suspicion requirement to searches of prison visitors. In doing 

so, we join the unanimous consensus reached by nine of our sister 

circuits. See Wood v. Clemons, 89 F.3d 922, 928–29 (1st Cir. 1996);

Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997); Calloway v. Lokey, 948 

F.3d 194, 202 (4th Cir. 2020); Thorne v. Jones, 765 F.2d 1270, 1276 (5th 

Cir. 1985); Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir. 1991); 

Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000); Hunter v. Auger, 

672 F.2d 668, 674 (8th Cir. 1982); Cates v. Stroud, 976 F.3d 972, 985 

(9th Cir. 2020); Romo v. Champion, 46 F.3d 1013, 1020 (10th Cir. 

1995). And, we note, two of those decisions postdate Florence, undermining any argument that Florence precludes a reasonable-suspicion standard for prison visitors. See Calloway, 948 F.3d at 202; 

Cates, 976 F.3d at 985.

We now apply this standard to the facts of Gilmore’s case. 

When we take the facts most favorably to Gilmore, Defendants 

lacked reasonable suspicion for the strip search. Gilmore denies 

consuming, possessing, or smelling like marijuana at any point before or during her visit. She also denies watching Officer Lupo during her visit. So at most, Gilmore “stared” at Lieutenant Milton for 

“one to two minutes.” That was not enough for Lieutenant Milton 

to reasonably suspect that Gilmore was concealing or smuggling 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 20 of 43
23-10343 Opinion of the Court 21

contraband and to justify a strip search.6 And it certainly did not 

justify a manual body-cavity search, as we discuss in further detail 

below.

What’s more, the strip search did not reveal any contraband. 

As we have reasoned, the “lack of revealed evidence” from a strip 

search “undermines the reasonableness of [the officer’s] belief that 

[the person searched] possessed drugs.” See Evans, 407 F.3d at 1280. 

Given these facts, the search was so “devoid of penological merit” 

that it violated Gilmore’s Fourth Amendment rights. See Harris v. 

Ostrout, 65 F.3d 912, 916 (11th Cir. 1995).

As the Supreme Court has recognized, strip searches are 

“embarrassing, frightening, and humiliating.” Safford, 557 U.S. at 

374–75; see also Evans, 407 F.3d at 1283 (characterizing strip search 

involving physical contact as “degrading”). This reality does not 

evaporate at the prison door. Cf. Turner v. Safley, 482 U.S. 78, 84 

(1987) (“Prison walls do not form a barrier separating [individuals] 

from the protections of the Constitution”). To be sure, we afford 

prison officials “substantial discretion to devise reasonable solutions” to the safety and security concerns presented by outside contraband. Florence, 566 U.S. at 326. But a suspicionless strip search 

of a prison visitor is not a “reasonable solution[].” See id. And we 

6 Under Gilmore’s version of the facts, Defendants also violated their own policy, which requires reasonable suspicion before a strip search may be conducted. Still, we do not “conflat[e] a violation of departmental policy with a 

violation of the Constitution.” See United States v. Brown, 934 F.3d 1278, 1296 

(11th Cir. 2019).

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 21 of 43
22 Opinion of the Court 23-10343

have no trouble concluding that such a search violated Gilmore’s 

Fourth Amendment rights. 

2. Scope of the Search

Besides that, the search as Gilmore has described it went 

even further than the blanket searches in Florence—it involved 

touching. And that presents its own “invasiveness” “concerns.” See 

Florence, 566 U.S. at 339.

We have already found that Defendants lacked reasonable 

suspicion that would justify a strip search. But that is only one half 

of the reasonableness inquiry. See T.L.O., 469 U.S. at 341. We also 

conclude that Defendants’ manual body-cavity search was unreasonable in scope and violated Gilmore’s Fourth Amendment rights 

for that independent reason. 

In determining whether the manner of a search is reasonable, we examine “the scope of the particular intrusion, the manner 

in which it is conducted, . . . and the place in which it is conducted.” 

Powell, 541 F.3d at 1305 (quoting Bell, 441 U.S. at 559). We also consider the availability of less intrusive alternatives. See, e.g., D.H. ex 

rel. Dawson v. Clayton Cnty. Sch. Dist., 830 F.3d 1306, 1317–18 (11th 

Cir. 2016).

“It is axiomatic that a strip search represents a serious intrusion upon personal rights” because it is “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, 

repulsive, signifying degradation and submission.” Justice v. 

Peachtree City, 961 F.2d 188, 192 (11th Cir. 1992) (quoting Mary Beth 

G., 723 F.2d at 1272). And that intrusion is magnified when 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 22 of 43
23-10343 Opinion of the Court 23

“physical contact between the searcher and the person searched” 

occurs. United States v. Touset, 890 F.3d 1227, 1234 (11th Cir. 2018); 

cf. also Bond v. United States, 529 U.S. 334, 337 (2000) (“Physically invasive inspection is simply more intrusive than purely visual inspection.”). In other words, when we evaluate the reasonableness of 

Defendants’ strip search of Gilmore, “[i]t matters that a body cavity 

search was undertaken.” See Evans, 407 F.3d at 1281.

As we’ve already explained, Defendants lacked reasonable 

suspicion to strip-search Gilmore in the first place. So they could 

not expand the scope of that search by manipulating Gilmore’s 

breasts and touching “in between” Gilmore’s buttocks. That only 

compounded the “degrading” and unreasonable nature of the 

search. See Evans, 407 F.3d at 1283. Indeed, Defendants’ own regulations prohibited “[b]ody cavity and invasive searches” even if reasonable suspicion justified a strip search of a visitor. Though Defendants’ noncompliance with their regulations is not dispositive of 

a constitutional violation, it is certainly relevant evidence. Cf. Hope 

v. Pelzer, 536 U.S. 730, 743–45 (2002).

Also relevant is the availability of less restrictive alternatives. 

See D.H., 830 F.3d at 1317–18. Gilmore had already undergone—

and passed—a pat-down search, metal detector wand, and body 

scan. But even if Defendants continued to suspect that Gilmore 

possessed contraband, they could have barred her from leaving 

their sight throughout the remainder of her visit (after all, it’s hard 

to imagine how, undetected, she could have extracted contraband 

from a body cavity in public). Or they could have ended her visit 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 23 of 43
24 Opinion of the Court 23-10343

or asked if she would rather leave than submit to a strip search. See

Cates, 976 F.3d at 983; Burgess, 201 F.3d at 945. 

And even if a strip search had been justified (again, it was 

not), the officers could have “limited the search to exclude body 

cavities.” See Justice, 961 F.2d at 193. At the very least, Lieutenant 

Milton could have asked Gilmore to lift her own breasts rather than 

instructing Officer Irizarry to do so.

In sum, Defendants’ manual body-cavity search was search 

was neither “justified at its inception” nor reasonable in scope. See

T.L.O., 469 U.S. at 341. So the search violated Gilmore’s Fourth 

Amendment rights.

C. The reasonable-suspicion requirement for a strip search of a 

prison visitor was not clearly established when Defendants strip 

searched Gilmore.

But a constitutional violation does not itself defeat qualified 

immunity. Rather, Gilmore can overcome the defense of qualified 

immunity only if prison visitors’ Fourth Amendment right to be 

free from strip searches without reasonable suspicion was “clearly 

established” at the time of the search. See Alcocer, 906 F.3d at 951. 

It was not. 

A “right can be clearly established in one of three ways.” 

Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021). Gilmore

“must point to either (1) ‘case law with indistinguishable facts,’ (2) 

‘a broad statement of principle within the Constitution, statute, or 

case law,’ or (3) ‘conduct so egregious that a constitutional right 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 24 of 43
23-10343 Opinion of the Court 25

was clearly violated, even in the total absence of case law.’” Id.

(quoting Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291–92 

(11th Cir. 2009)). And in this Circuit, when we conduct this analysis, “we look to binding decisions of the Supreme Court of the 

United States, this Court, and the highest court of the relevant 

state”—here, Georgia. Glasscox v. City of Argo, 903 F.3d 1207, 1217

(11th Cir. 2018).7 Precedent from other jurisdictions cannot clearly 

establish the law in our Circuit. See id.

Gilmore does not point to “case law with indistinguishable 

facts.” See Crocker, 995 F.3d at 1240 (quoting Lewis, 561 F.3d at 1291–

92). Nor could she. She must rely, then, on the second or third 

alternatives: a “broad statement of principle” or “egregious” conduct. See id. (quoting Lewis, 561 F.3d at 1292).

We begin with the second. Under the “broad principle” alternative, “[e]xact factual identity with a previously decided case is 

not required, but the unlawfulness of the conduct must be apparent from pre-existing law.” Coffin v. Brandau, 642 F.3d 999, 1013 

(11th Cir. 2011) (en banc). And we conduct that inquiry based on 

“the specific context of the case,” not based on a “broad general 

proposition.” Id. (citation and internal quotation marks omitted). 

To that end, where “case law, in factual terms, has not staked out a 

bright line, qualified immunity almost always protects the 

7 Gilmore contends that a “robust consensus of . . . persuasive authority” may 

also “clearly establish[]” a constitutional right. See District of Columbia v. Wesby, 

583 U.S. 48, 63 (2018); Glasscox, 903 F.3d at 1217. But as we discuss, our precedent rejects that path to defeating qualified immunity. 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 25 of 43
26 Opinion of the Court 23-10343

defendant.” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)

(citation and internal quotation marks omitted). 

Here, case law “has not staked out a bright line,” see id., with 

respect to strip searches of prison visitors. As we’ve mentioned, we 

have required reasonable suspicion for strip searches of arrestees, 

Evans, 407 F.3d at 1279; students, Safford, 557 U.S. at 377; and border 

entrants, Alfaro-Moncada, 607 F.3d at 729. And on the other side of 

the scale, we and the Supreme Court have upheld suspicionless 

strip searches of prisoners under blanket policies. See Bell, 441 U.S. 

at 558; Florence, 566 U.S. at 324, 339; Powell, 541 F.3d at 1300. In 

Gilmore’s view, those cases are enough to clearly establish that reasonable suspicion was required for a strip search of a prison visitor 

in 2017.

We disagree. As the Supreme Court has emphasized, we 

evaluate whether a right is clearly established “on the basis of the 

specific context of the case.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) 

(citation and internal quotation marks omitted). And this requirement applies with even more force in the Fourth Amendment context, where “what is reasonable depends on the context within 

which a search takes place.” See Maryland v. King, 569 U.S. 435, 461–

62 (2013). 

So we return to the closest case on point, Evans. There, the 

defendant police officer arrested the plaintiffs and conducted a strip 

search in a supply closet. See 407 F.3d at 1276. During that search, 

the officer used a baton to “str[ike]” the plaintiffs’ anuses and “lift 

[their] testicles” and “taunted” the plaintiffs with “racist language.” 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 26 of 43
23-10343 Opinion of the Court 27

Id. at 1277. We found that the underlying constitutional right had 

not been “clearly established” but that “the Fourth Amendment itself provided . . . sufficient notice that the manner of these particular searches was ‘unreasonable’ in the constitutional sense.” Id. at 

1278. That was because the officer lacked reasonable suspicion that 

the plaintiffs had drugs on their person, and the scope of the search 

was “degrading and forceful.” Id. at 1280–83.

But, we expressly “stress[ed],” we did not decide whether the 

reasonable-suspicion “standard applie[d] to strip searches for other 

purposes, such as, searches conducted by jailers on arrestees bound 

for a jail’s general population as part of a safety or security routine 

of the jail.” Id. at 1279 n.8. Put simply, Evans limited itself to its 

context: investigatory searches of arrestees. It did not “clearly establish” that strip searches of prison visitors without reasonable 

suspicion are constitutionally unreasonable. At most, it suggested 

as much by analogy, but we do not require officers “to be creative 

or imaginative in drawing analogies from previously decided 

cases.” Coffin, 642 F.3d at 1015 (citation and internal quotation 

marks omitted). 

Nor did the school-search or border-search cases “clearly establish” the applicable law. Again, cases like Safford and AlfaroMoncada support our finding that Defendants’ strip search violated 

Gilmore’s constitutional rights. But they fail to account for the 

unique safety and security considerations inherent in the prison 

context. See Bell, 441 U.S. at 558–59; Florence, 566 U.S. at 326. So 

they did not—and could not—“clearly establish” that a strip search 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 27 of 43
28 Opinion of the Court 23-10343

at a prison required reasonable suspicion. In short, the “broad principle” alternative cannot defeat qualified immunity here.

Nor can the third alternative, which we have referred to as 

the “obvious clarity” exception. See, e.g., Coffin, 642 F.3d at 1015. 

Cases meeting that exception are “rare in general” and “even more 

rare” in the “inherently fact-specific” Fourth Amendment context. 

Id. And here, given cases like Bell and Florence, we cannot say that 

a constitutional violation would have been “obvious” to any reasonable officer. But qualified immunity “protects all but the plainly 

incompetent or those who knowingly violate the law.” Ashcroft v. 

al-Kidd, 563 U.S. 731, 743 (2011) (citation and internal quotation 

marks omitted). While we are certainly troubled by the facts of 

the search as alleged, the prison strip-search cases preclude us from 

saying Defendants were “plainly incompetent” or “knowingly violate[d] the law.” See id.

Gilmore advances two additional arguments that the law 

was “clearly established” in her favor. Neither succeeds. 

First, Gilmore argues that the strip search violated Defendants’ own regulations, so Defendants were necessarily on notice 

that they were violating Gilmore’s constitutional rights. See AlAmin v. Smith, 511 F.3d 1317, 1336 n.37 (11th Cir. 2008) (regulations 

can “undermine any claim by defendants that they were unaware 

of their legal obligations”). But our qualified-immunity analysis 

does not ask whether a defendant violated “clearly established” regulation; it asks whether a defendant violated “clearly established” 

law. See id. (“regulations . . . do not constitute constitutional law”); 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 28 of 43
23-10343 Opinion of the Court 29

cf. also Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984) (officials do not 

“lose their immunity by violating the clear command of a statute 

or regulation . . . unless that statute or regulation provides the basis 

for the cause of action sued upon”). So we must reject Gilmore’s 

argument.

Second, Gilmore suggests another path to “clearly established” law: a “robust consensus of . . . persuasive authority.” See 

Wesby, 583 U.S. at 63; Glasscox, 903 F.3d at 1217. As we’ve pointed 

out, by 2017, when the search here occurred, seven circuits had required reasonable suspicion for a strip search of a prison visitor. See

Wood, 89 F.3d at 928–29; Varrone, 123 F.3d at 79; Thorne, 765 F.2d at 

1276; Daugherty, 935 F.2d at 787; Burgess, 201 F.3d at 945; Hunter, 672 

F.2d at 674; Romo, 46 F.3d at 1020. That, Gilmore claims, was 

enough to put Defendants on notice that they were violating her 

constitutional rights. And “[t]he touchstone of qualified immunity 

is notice.” Moore v. Pederson, 806 F.3d 1036, 1046 (11th Cir. 2015).

To be sure, both we and the Supreme Court have suggested 

that “a robust ‘consensus of cases of persuasive authority’” may 

“place[] the statutory or constitutional question beyond debate.” 

Carollo v. Boria, 833 F.3d 1322, 1333 (11th Cir. 2016) (quoting al-Kidd, 

563 U.S. at 741–42); see also Wesby, 583 U.S. at 63; Glasscox, 903 F.3d 

at 1217. But in neither Carollo nor Glasscox did we actually consult 

persuasive authority when reaching our holding. See Carollo, 833 

F.3d at 1334 (relying on Supreme Court cases and a “robust consensus of our precedent” (emphasis added)); Glasscox, 903 F.3d at 1218 

(relying on two Eleventh Circuit cases). At most, then, those 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 29 of 43
30 Opinion of the Court 23-10343

statements are dicta, which do not bind us. See, e.g., United States v. 

Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019).

What’s more, we expressly rejected a similar rule over a decade earlier. See Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 

(11th Cir. 2003). In Thomas, the plaintiffs seized on similar language 

regarding “a consensus of cases of persuasive authority” from Wilson v. Layne, 526 U.S. 603, 617 (1999). See id. We “reaffirmed” our 

pre-Wilson position because we did not read “Wilson to have held 

that a consensus of cases of persuasive authority would be able to 

establish law clearly.” Id. (citing Marsh v. Butler County, 268 F.3d 

1014, 1032 n.10 (11th Cir. 2001) (en banc)). And we cannot say that 

Wesby “demolish[ed]” or “eviscerate[d]” Thomas’s “fundamental 

props.” See United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 

2024) (citation and internal quotation marks omitted). So Wesby

did not undermine Thomas to the point of abrogation. See id. And 

to the extent that Carollo and Glasscox conflict with Thomas, Thomas

controls. See id. at 1301 (applying “earliest case” rule). 

So we do not look to persuasive authority—even a “robust 

consensus” of it—to determine whether the law was “clearly established” in this Circuit. And no precedent from the Supreme Court, 

our Circuit, or the Georgia Supreme Court “clearly established” 

that reasonable suspicion was required for a strip search of a prison 

visitor in 2017. For these reasons, Defendants are entitled to qualified immunity. 

IV. CONCLUSION

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 30 of 43
23-10343 Opinion of the Court 31

Strip searches are “degrading,” Evans, 407 F.3d at 1283; “dehumanizing,” Justice, 961 F.2d at 192; and “humiliating,” Safford, 557 

U.S. at 375. Correctional officers must have reasonable suspicion 

that a prison visitor is carrying contraband before they may stripsearch that visitor, and a manual body-cavity search is rarely (if 

ever) justified in such circumstances. But because the law was not 

clearly established to that effect in February 2017, Defendants are 

entitled to qualified immunity. We therefore affirm the district 

court’s grant of summary judgment to Defendants. 

AFFIRMED. 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 31 of 43
23-10343 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, concurring:

“[W]hen a precedent of the Supreme Court has direct application, we must follow it.” United States v. Johnson, 921 F.3d 991, 

1001 (11th Cir. 2019) (en banc) (cleaned up). For more than a quarter of a century, the Supreme Court has repeatedly directed that “a 

robust ‘consensus of cases of persuasive authority’” can “clearly establish” a constitutional violation for qualified-immunity purposes. 

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (quoting Wilson v. Layne, 

526 U.S. 603, 617 (1999)); see also District of Columbia v. Wesby, 583 

U.S. 48, 63 (2018). Yet we have consistently dodged that directive. 

It’s time to bring our precedent into the twenty-first century. 

I. 

To recap, qualified immunity shields officers from civil liability so long “as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person 

would have known.” Carruth v. Bentley, 942 F.3d 1047, 1053 (11th 

Cir. 2019) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). 

The Supreme Court has identified two sources of law that may

clearly establish a right: “controlling authority” or “a robust consensus of cases of persuasive authority.” Wesby, 583 U.S. at 63 (citation and internal quotation marks omitted); see also al-Kidd, 563 

U.S. at 742 (“absent controlling authority,” only a “robust ‘consensus of persuasive authority’” can clearly establish a constitutional 

right (quoting Wilson, 526 U.S. at 617)); Elder v. Holloway, 510 U.S. 

510, 516 (1994) (“A court engaging in review of a qualified immunity judgment should therefore use its full knowledge of its own 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 32 of 43
2 ROSENBAUM, J., Concurring 23-10343

[and other relevant] precedents.” (alterations in original) (citation 

and internal quotation marks omitted)).

“[C]ontrolling authority” is easy enough. We have long recognized that includes “binding decisions of the Supreme Court of 

the United States, this Court, and the highest court of the relevant 

state”—here, Georgia. Glasscox v. City of Argo, 903 F.3d 1207, 1217

(11th Cir. 2018). 

But when the Supreme Court explained in 1999 that “a consensus of cases of persuasive authority” can “clearly establish” a 

constitutional violation for qualified-immunity purposes, see Wilson, 526 U.S. at 617, we declined to recognize it. At the turn of this 

century, seizing on Wilson’s plain language, a plaintiff argued that a 

“consensus of cases of persuasive of authority” “clearly established” a constitutional violation. See Marsh v. Butler County, 268 

F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc), abrogated on other 

grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561–63 (2007). We 

summarily rejected that argument, saying only that we did “not understand Wilson . . . to have held that a ‘consensus of cases of persuasive authority’ from other courts would be able to establish the 

law clearly.” Id. (quoting Wilson, 526 U.S. at 617). 

Then in Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 

(11th Cir. 2003), we doubled down on our failure to follow Wilson. 

We said that Marsh “implicitly reaffirmed” our pre-Wilson position. 

Id. (citing Marsh, 268 F.3d at 1032 n.10). So, we reasoned, any “argument based upon decisions in other circuits [was] foreclosed by 

our precedent.” Id.

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 33 of 43
23-10343 ROSENBAUM, J., Concurring 3 

From its inception, Thomas rested on a faulty premise. 

There is no way to reasonably read Wilson as not acknowledging 

that “a consensus of cases of persuasive authority” can “clearly establish” the law for qualified-immunity purposes. See id. Yet we 

insist on such a reading.

Later Supreme Court case law renders our decision to ignore 

Wilson’s plain language all the more problematic. In Wesby, for instance, the Supreme Court explained that, “[t]o be clearly established, a legal principle must . . . [be] dictated by ‘controlling authority’ or ‘a robust “consensus of cases of persuasive authority.”’ 

583 U.S. at 63 (quoting al-Kidd, 563 U.S. at 741–42). Then the Supreme Court applied the “robust consensus” rule it articulated. See

id. at 65. It found that qualified immunity was proper because the 

parties had not “identified a single precedent—much less a controlling case or robust consensus of cases—finding a Fourth Amendment 

violation under similar circumstances.” Id. at 65 (emphasis added) 

(citation and internal quotation marks omitted). The Court’s reference to a “robust consensus of cases,” id., would make little sense 

if such a consensus could not “clearly establish” relevant law. And 

that is especially so, given that Wesby relied on al-Kidd, and al-Kidd

explained that a “robust consensus . . . is necessary absent controlling authority.” See 563 U.S. at 742 (citation and internal quotation 

marks omitted). 

It is clear, then, that the Supreme Court contemplates a role 

for “a robust consensus of persuasive authority” in the “clearly established law” inquiry. See Grayden v. Rhodes, 345 F.3d 1225, 1251 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 34 of 43
4 ROSENBAUM, J., Concurring 23-10343

n.4 (11th Cir. 2003) (Birch, J., concurring). Yet our precedent does 

not.

Exacerbating this conflict, our case law on this issue is inconsistent. Our later case law has suggested (in dicta) that “a robust 

consensus of . . . persuasive authority” can “place[] the statutory or 

constitutional question beyond debate.” Carollo v. Boria, 833 F.3d 

1322, 1333 (11th Cir. 2016) (citation and internal quotation marks 

omitted); see also Glasscox, 903 F.3d at 1217 (11th Cir. 2018) (similar). 

But of course, as the majority opinion notes, our “earliest-case” 

rule requires us to follow Thomas rather than Carollo or Glasscox. 

Maj Op. at 30. This conflict provides all the more reason to revisit 

and clarify our case law. 

Not only that, but our confusion on this point has caused us 

to say things that are just downright wrong. For instance, we have 

transposed the “robust consensus” language onto the “controlling 

authority” category. See Washington v. Howard, 25 F.4th 891, 903 

(11th Cir. 2022). In Washington, we said that the plaintiff could not

“identify a controlling case or robust consensus of cases . . . from 

the Supreme Court, this Circuit, or the Georgia Supreme Court.” 

Id. (cleaned up). But the Supreme Court has never required a “robust consensus of cases . . . from the Supreme Court, this Circuit, 

or the [relevant state] [s]upreme [c]ourt,” id. One case can “clearly 

establish” law if it is directly on point or applies the relevant broad 

principle. 

Yet despite “defect[s] in the prior panel[s’] reasoning or analysis” on the issue of how the law can be clearly established, we are 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 35 of 43
23-10343 ROSENBAUM, J., Concurring 5

bound by our prior panel precedent. See Smith v. GTE Corp., 236 

F.3d 1292, 1303 (11th Cir. 2001). That said, those defects are glaring. 

We cannot opt out of Supreme Court precedent.

I concur in the majority opinion in full because the priorprecedent rule requires me to do so. But we should rehear the 

“clearly established law” issue en banc to clarify the role of persuasive authority in that analysis. In doing so, I would conform our 

precedent to the Supreme Court’s.

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 36 of 43
23-10343 NEWSOM, J., Concurring 1

NEWSOM, Circuit Judge, concurring:

Many have complained that modern qualified-immunity jurisprudence is fundamentally broken for one reason or another. 

Some say, for instance, that it’s textually and historically unjustifiable, at least in its current form. See, e.g., William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018). Others contend 

that it bears no connection to the realities of modern policing. See, 

e.g., Joanna C. Schwartz, Qualified Immunity’s Boldest Lie, 88 U. Chi. 

L. Rev. 605 (2021). I’ll leave those major-league debates for another day. For now, I’d simply like to highlight a couple of minorleague oddities generated by existing qualified-immunity doctrine. 

I

The first results from the fact that the Supreme Court has 

bounced around about the order in which reviewing courts should 

decide qualified-immunity’s merits and “clearly established” 

prongs. Initially, of course, in Saucier v. Katz, the Supreme Court 

held that a reviewing court should always resolve the merits of a 

plaintiff’s constitutional claim first, before determining whether 

the law underlying that claim was sufficiently clearly established to 

defeat qualified immunity. See 533 U.S. 194, 201 (2001). Less than 

a decade later, though, in Pearson v. Callahan, the Court reversed 

itself and held that the Saucier sequence “should no longer be regarded as mandatory” and that reviewing courts may consider the 

merits and clearly-established issues in whatever order they wish. 

See 555 U.S. 223, 236 (2009). Both options entail perversities of a 

sort. On the one hand, if courts routinely bypass the merits in favor 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 37 of 43
2 NEWSOM, J., Concurring 23-10343

of resolving the qualified-immunity issue on the clearly-established 

prong, they forgo valuable opportunities to establish law for future 

cases. See, e.g., Aaron L. Nielson & Christopher J. Walker, The New 

Qualified Immunity, 89 S. Cal. L. Rev. 1 (2015). On the other hand, 

if a court concludes that a defendant’s conduct violated the Constitution, but then goes on to hold that the law wasn’t clearly established at the time he acted and that he is therefore entitled to qualified immunity, its merits holding is effectively dictum. See id. at 13; 

Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 

N.Y.U. L. Rev. 1249, 1275–76 (2006). 

Today’s decision takes the latter path, tackling the merits before proceeding to the clearly-established inquiry. And given the 

circumstances, I think that’s the right call: The Fourth Amendment 

questions that this case presents are important both to prison officials and to would-be prison visitors, and they are likely to recur; 

accordingly, it makes sense to go ahead and decide them. Even so, 

I must admit that it feels strange—even a little jarring—to resolve 

weighty constitutional questions of first impression in what all 

must agree is (or in ordinary circumstances would be) dictum. The 

majority opinion—which, to be clear, I join in full, so I’m not 

throwing shade—announces its resolution of the principal Fourth 

Amendment issue in the case as follows:

Until now, neither we nor the Supreme Court ha[ve] 

explicitly defined the standard for strip searches of a 

free person visiting a jail or prison. We now hold that 

correctional officers must have at least reasonable suspicion that a visitor is concealing contraband (e.g., 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 38 of 43
23-10343 NEWSOM, J., Concurring 3

drugs or weapons) before they may strip-search that 

visitor.

Maj. Op. at 14. It then proceeds to explain at length and in detail 

the basis for its decision in that respect—and as my joinder reflects, 

I think that it does so correctly and persuasively. See id. at 14–22. 

But, and herein lies the rub, the majority opinion goes on (again, I 

think correctly) to hold—to hold—that because no binding authority had “‘clearly established’ that reasonable suspicion was required 

for a strip search of a prison visitor” at the time of the events in 

question here, the prison-official defendants “are entitled to qualified immunity,” and thus, importantly, to judgment in their favor. 

Id. at 30–31.

So, if we’re being honest, our (important) determination 

that “correctional officers must have at least reasonable suspicion 

that a [prison] visitor is concealing contraband . . . before they may 

strip-search that visitor,” id. at 14, is definitionally, quintessentially 

dictum—or at least it would be in any other context. It is, quite 

literally, “[a] judicial comment made while delivering a judicial 

opinion, but one that is unnecessary to the decision in the case.” 

Obiter Dictum, Black’s Law Dictionary (12th ed. 2024). That’s not 

to say, of course, that the statement is in any way improper—to the 

contrary, in answering the Fourth Amendment question on the 

merits, we’ve done exactly what the Supreme Court has authorized 

us to do. It’s just weird that the qualified-immunity two-step permits—and in some way even encourages—courts to do the very 

thing that we would otherwise condemn.

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 39 of 43
4 NEWSOM, J., Concurring 23-10343

II

The second oddity relates to the question whether a reviewing court can consider non-binding authority in determining 

whether the law at issue was “clearly established” for qualified-immunity purposes. Today’s majority opinion correctly recognizes 

that existing Eleventh Circuit precedent prevents us from looking 

beyond this Court’s jurisdictional boundaries in search of clearly 

established law. See Maj. Op. at 30–31; accord, e.g., Bradley v. Benton, 

10 F.4th 1232, 1242–43 (11th Cir. 2021) (same). In her separate concurring opinion, Judge Rosenbaum makes the case that our rule 

contravenes the Supreme Court’s own precedent, which, she says, 

has long recognized that not only “controlling authority” but also 

“a robust consensus of cases of persuasive authority” can clearly 

establish the law. See Rosenbaum Conc. Op. passim (citing, e.g., 

Wilson v. Layne, 526 U.S. 603, 617 (1999), Ashcroft v. al-Kidd, 563 U.S. 

731, 742 (2011), and District of Columbia v. Wesby, 583 U.S. 48, 63

(2018)).

I share Judge Rosenbaum’s concern that we may well be out 

of step with the Supreme Court’s view about the role of non-binding authority in the qualified-immunity calculus. But I’ll confess 

that I’m not at all sure how a “robust consensus” rule would (or 

should) operate in the real world. For better or worse, modern 

qualified-immunity doctrine bottoms on notions of “fair notice” to 

government officials. See Hope v. Pelzer, 536 U.S. 730, 739 (2002); 

Wesby, 583 U.S. at 63. Accordingly, in determining whether a “robust consensus of persuasive authority” can clearly establish the 

law for qualified-immunity purposes, we should presumably ask 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 40 of 43
23-10343 NEWSOM, J., Concurring 5

whether that sort (and exactly what sort) of consensus gives officials the requisite notice.1 And at the risk of getting all meta, the 

answer to that question, in turn, may well turn on one’s views on 

the nature of law itself—evocative, in a way, of the well-worn debates surrounding Swift and Erie.

Here’s what I mean: Is “the law”—of the sort that either is 

or isn’t clearly established—necessarily the product of some sovereign lawgiver? Or can it exist of its own force, without the need for 

a formal, authoritative, binding decree? If it’s the former, then 

there’s presumably no basis for looking beyond our jurisdictional 

boundaries in assessing whether “the law” was clearly established. 

On that view, government officials working within the confines of 

the Eleventh Circuit are entitled to limit their search for and 

knowledge of “the law” to this court’s binding decisions—other 

courts’ decisions may be interesting, they may be informative, but 

they can’t clearly establish “the law.” But if it’s the latter—if “the 

law” can exist independently of a binding decree—then the rule 

that only in-circuit decisions can clearly establish that law for qualified-immunity purposes makes a lot less sense.

Inasmuch as real-world “fair notice” is qualified-immunity’s 

lodestar, I think I lean toward the latter view. Especially in a case 

like this, in which (1) our own analogous-but-not-binding decisions 

1 It’s worth noting that the answer to this question may be influenced by the 

answer to what kinds of precedents qualify as “controlling” authority for qualified-immunity purposes—a question the Supreme Court seems to have reserved. See Wesby, 583 at 66 n.8.

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 41 of 43
6 NEWSOM, J., Concurring 23-10343

involving arrestees, students, and border entrants have required 

that strip searches be supported by reasonable suspicion, see Maj. 

Op. at 19–20, and (2) all nine of our sister circuits that have considered the issue have held that the Fourth Amendment requires reasonable suspicion for strip searches of prison visitors, see Maj. Op. 

at 20, it seems eminently reasonable to conclude that “the law” 

gave the prison officials at Smith State Prison “fair notice” that their 

suspicionless strip search of Clarissa Gilmore was unconstitutional.2 To be candid, though, that’s little more than my own 

“sense”—a vibe. If we changed any (or several) of the inputs, I 

might well have a different sense. What if, for instance, this Court 

hadn’t required reasonable suspicion in the arrestee, student, and 

border-entrant contexts, and we were thus left with only the ninecircuit consensus regarding strip searches of prison visitors? Would 

I have the same sense about the fairness of imputing notice to the 

Smith officials? Probably, but I can’t be sure. What if the other circuits weren’t unanimous—say, that seven had required reasonable 

suspicion but two hadn’t? Six and three? Or what if our sister circuits were unanimous, but only four had decided the issue, rather 

than nine? Who knows.

You can probably see where this is going: It all feels, well, 

kind of made up. And as I’ve said before, “if there is any fixed star 

2 So reasonable, in fact, that both in their pleadings below and at oral argument 

before us, the Smith officials agreed that “reasonable suspicion” is “the correct 

standard”—what the Fourth Amendment requires to initiate a strip-search of 

a prison visitor. See Or. Arg. at 14:00–30; Doc. 50-1 at 12; Doc. 55 at 14.

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 42 of 43
23-10343 NEWSOM, J., Concurring 7

in my own constitutional constellation, it’s that unelected, unaccountable federal judges shouldn’t make stuff up.” Club Madonna 

Inc. v. City of Miami Beach, 42 F.4th 1231, 1261 (11th Cir. 2022) (Newsom, J., concurring in part and dissenting in part) (citation omitted).

* * *

I realize, of course, that I’m just identifying problems, not 

offering solutions—which, I know, can be annoying. By and large, 

though, we “inferior court[]” judges, seeU.S. Const. art. III, § 1, have 

to play the hand the Supreme Court deals us. It may be that the 

problems I’ve highlighted—minor-league as they are—indicate that 

the time is coming (has come?) for that Court to consider a majorleague reassessment of its qualified-immunity jurisprudence. 

USCA11 Case: 23-10343 Document: 46-1 Date Filed: 07/29/2024 Page: 43 of 43