Case: 16-15383   Date Filed: 02/08/2017   Page: 1 of 10


                                                            [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 16-15383
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:15-cv-21271-RNS



TROOPER DONNA JANE WATTS,
                                               Plaintiff - Appellee,

versus

CITY OF MIAMI, et al.,
                                              Defendants,

OFFICER PABLO CAMACHO,
OFFICER ROSHAN MILLIAGAN,
OFFICER JESUS PEDRAZA,
OFFICER JAMIE RAMIREZ,
OFFICER DAVID CISERNO,
                                               Defendants - Appellants.

                         ________________________

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

                             (February 8, 2017)

Before HULL, MARCUS, and WILSON, Circuit Judges.
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PER CURIAM:

      Defendant-appellants Pablo Camacho, David Cisnero, Roshan Milligan,

Jesus Pedraza, and Jaime Ramirez (“Defendants”) appeal from the district court’s

denial of their motion for summary judgment on the basis of qualified immunity in

favor of Plaintiff-appellee Donna Watts. Watts’s complaint alleged, among other

things, that the Defendants violated the Driver’s Privacy Protection Act (DPPA),

18 U.S.C. §§ 2721–25, by accessing her information in the Driver and Vehicle

Information Database (DAVID) maintained by the Florida Department of Highway

Safety and Motor Vehicles (DHSMV). On appeal, the Defendants argue that the

district court erred in denying them immunity from Watts’s claims because either:

(1) their DAVID accesses were permissible uses enumerated in the DPPA; or, if

not, (2) it was not clearly established that their accesses were not permissible under

the DPPA. After thorough review, we reverse and remand.

      We review de novo the district court’s decision on a motion for summary

judgment based on qualified immunity. Terrell v. Smith, 668 F.3d 1244, 1249–50

(11th Cir. 2012). We resolve all issues of material fact in the plaintiff’s favor and

approach the facts from the plaintiff’s perspective. Lee v. Ferraro, 284 F.3d 1188,

1190 (11th Cir. 2002).      “We then answer the legal question of whether the

defendant is entitled to qualified immunity under that version of the facts.” Id.

(quotation and alterations omitted).


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      The relevant facts are these. On October 11, 2011, Watts -- a trooper with

the Florida Highway Patrol -- pulled over a uniformed but off-duty City of Miami

police officer driving a marked police car. Watts cited him for reckless driving,

and, during the stop, pulled her gun on the officer and handcuffed him. The

incident was highly publicized and a video of the stop appeared on YouTube.

Soon afterward, Watts began receiving online threats, numerous hang-up telephone

calls on her unlisted home and cellular phones, and other forms of harassment.

Watts contacted the DHSMV to ascertain whether law enforcement officers had

accessed her DAVID information, and received a report that over 88 law

enforcement officers, including the Defendants, had indeed accessed her

information.

      Following the issuance of that report, which was also provided to the City of

Miami, the City’s Internal Affairs Section began an investigation into the

Defendants’ access of Watts’s information.       As part of the investigation, the

Defendants were interviewed. They all claimed that they performed a DAVID

query as part of their official duties. The officers said that because Watts had

pulled her weapon on a police officer, they wanted to be able to identify her for

their own safety, and so needed to see her DAVID picture. The records show,

however, that the officers scrolled through multiple pages of information after

seeing the Plaintiff’s picture. At the end of the investigation, each of the officers


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was cited for performing an unauthorized search of DAVID which was not for law

enforcement or criminal justice purposes, and was officially reprimanded (although

no punishment issued).

      Watts filed a number of civil suits against over 100 defendants for accessing

her personal information through DAVID; this case is the only one of Watts’s

actions that is still pending.   In the course of this case’s proceedings, Watts

stipulated to the dismissal of all other claims and defendants except her DPPA

claims against the Defendants and the City of Miami. All of the parties moved for

summary judgment on these claims, and the district court denied all the motions.

The Defendants timely filed this interlocutory appeal as to the court’s denial of

their motion for summary judgment on the specific ground of qualified immunity.

      Qualified immunity “offers complete protection for government officials

sued in their individual capacities as long as their conduct violates no clearly

established statutory or constitutional rights of which a reasonable person would

have known.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009)

(quotation omitted). In order to receive qualified immunity, a defendant “must

first prove that he was acting within the scope of his discretionary authority when

the allegedly wrongful acts occurred.” Courson v. McMillian, 939 F.2d 1479,

1487 (11th Cir. 1991) (quotation omitted). Once the defendant establishes that he

was acting within his discretionary authority, the burden shifts to the plaintiff to


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show that qualified immunity is not appropriate. See id. To ascertain whether an

official is entitled to qualified immunity, we must “evaluate whether Plaintiffs’

allegations, if true, establish a violation of a constitutional or statutory right,” and

if so, whether that right was “clearly established” such that it “provided fair

warning to [the Defendants] that they were violating the law.”               Collier v.

Dickinson, 477 F.3d 1306, 1308, 1311 (11th Cir. 2007) (citing Hope v. Pelzer, 536
U.S. 730, 731 (2002)). Courts may take up these two steps in either order. Brooks

v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015).

      When considering whether an official “would have known that his actions

were prohibited by the law at the time he engaged in the conduct in question,”

“[t]he standard is one of objective reasonableness.” Collier, 477 F.3d at 1311. Our

Circuit uses two methods to determine whether a reasonable officer would know

that his conduct violates federal law. The first “looks at the relevant case law at

the time of the violation; the right is clearly established if a concrete factual

context exists so as to make it obvious to a reasonable government actor that his

actions violate federal law.” Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th

Cir. 2011) (quotation and brackets omitted). The second “looks not at case law,

but at the officer’s conduct, and inquires whether that conduct lies so obviously at

the very core of what the [law] prohibits that the unlawfulness of the conduct was




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readily apparent to the officer, notwithstanding the lack of fact-specific case law.”

Id. (quotation and brackets omitted).

      It is uncontested that the Defendants in this case were acting within their

discretionary authority as police officers when they accessed Watts’s DAVID

information.    Thus, the burden shifted to Watts to show that they violated a

statutory right -- here, her rights under the DPPA. To establish a violation of the

DPPA, a plaintiff must show “that a defendant (1) knowingly obtained, disclosed

or used personal information, (2) from a motor vehicle record, (3) for a purpose not

permitted.”    Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, &

Stevens, P.A., 525 F.3d 1107, 1111 (11th Cir. 2008). “The plain meaning of the

third factor is that it is only satisfied if [it is] shown that obtainment, disclosure, or

use was not for a purpose enumerated under § 2721(b)”; “the burden [to show this]

is properly upon the plaintiff.” Id. at 1111–12.

      In this appeal, the Defendants do not contest that they (1) knowingly

obtained Watts’s personal information (2) from a motor vehicle record. They

argue, however, that Watts failed to show that they obtained her information for an

impermissible purpose.        They also argue that even if their purpose was

impermissible under the DPPA, Watts has failed to show that such

impermissibility was sufficiently established to warrant denying them qualified

immunity.


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      As the record shows, the district court concluded that Watts established a

triable issue of fact as to whether the Defendants violated her DPPA rights, but the

court did not specify what the potential impermissible purpose was. The district

court also concluded that the Defendants’ actions were clearly prohibited by the

DPPA based on Circuit precedent that said that “[t]he words of the DPPA alone are

‘specific enough to establish clearly the law applicable to particular conduct and

circumstances and to overcome qualified immunity.’” Collier, 477 F.3d at 1312

(quoting Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002)).

      We are compelled to conclude that the district court erred. Collier is not

sufficiently similar to the facts at issue in this case as to constitute “relevant case

law” that put the officers on notice, nor did it lay down a general rule that

violations of the DPPA are always violations of clearly established law. This

Court in Collier addressed a situation in which executive-level DHSMV officials

were selling driver records to third-party mass marketers without the consent of the

drivers. Id. at 1307. We concluded that this was a violation of clearly established

law, because “[t]he language of Sections 2721(b)(11)–(13) unambiguously requires

the consent of individuals before their motor vehicle record information may be

released” for sale to marketers. Id. at 1310–11. This is very different from the

Defendant’s behavior in this case, where the officers obtained information about

Watts for their own use.


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      Moreover, Collier does not stand for the principle that all DPPA violations

are so obviously clear that qualified immunity can never protect an official from

suit under the DPPA. Rather, Collier represents the more common sense judgment

that where a violation is readily apparent from the plain language of an act, the

plaintiff need not point to any particular case addressing the obvious import of the

statute. This Court found it clear from the DPPA’s text that consent was required

for information released to marketers. Id. at 1310 (“[T]he protections offered by

the statute are clear and specific.”). But as we’ve said before, “[o]bvious clarity

cases are ‘rare’ and present a ‘narrow exception’ to the general rule of qualified

immunity.” Gilmore v. Hodges, 738 F.3d 266, 279 (11th Cir. 2013) (quotation and

citation omitted). To fall into this category, a prohibition must be so clear that “no

reasonable officer could have believed that [the Defendants’] actions were legal.”

Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002).

      It is not obviously clear that an officer obtaining the information for his own

use is not within the permissible use of § 2721(b)(1), “use by any government

agency, including any court or law enforcement agency, in carrying out its

functions,” or of § 2721(b)(14), “any other use specifically authorized under the

law of the State that holds the record, if such use is related to . . . public safety.” To

overcome the qualified immunity defense under this standard, Watts was required

to show that no reasonable officer in the Defendants’ position could have believed


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that he was accessing her DAVID information for a permissible use under the

DPPA.     Watts never made this showing, and the district court, nonetheless,

misapplied Collier to conclude that all DPPA violations are obviously clear, and

did not otherwise address the issue.

      On appeal, Watts has only argued that “officer safety” was not the true

purpose of the officers’ DAVID accesses. Importantly, however, she has not

explicitly alleged, much less carried her burden to show, that the Defendants

obtained the information for a purpose clearly not permitted by the DPPA. See

Thomas, 525 F.3d at 1111–12 (A plaintiff must show “that a defendant

(1) knowingly obtained, disclosed or used personal information, (2) from a motor

vehicle record, (3) for a purpose not permitted.” . . . [The plaintiff] argues that the

permissible uses . . . function as statutory exceptions and, therefore, the defendants

should carry the burden of proof to secure entitlement of such exceptions. We

disagree.”); Gilmore, 738 F.3d at 272 (explaining that once the defendant has

established that he was acting within the scope of his discretionary authority, the

burden shifts to the plaintiff to show a violation of a clearly established right).

      In short, “[i]n the absence of [any] caselaw to the contrary, [the Defendants],

though [possibly] mistaken, could have reasonably believed” that their DAVID

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


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Defendants that Watts did not show that the officers had “clear notice . . . that

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

1311–12. Because Watts failed to show that the officers accessed her information

for a purpose that was clearly not permitted by the DPPA, we need not address

whether their actual purpose was permitted under the DPPA. 1 Accordingly, we

conclude that the district court erred in denying the Defendants qualified

immunity. We reverse and remand to the district court for entry of judgment in

favor of the Defendants.

       REVERSED and REMANDED.




1
  The only purpose discussed in this case that might have met the ”clearly established” threshold
was harassment of Watts. But as the district court noted in its summary judgment order, Watts
“[did] not link[ ] the harassment to these officers,” and even on appeal, Watts only notes that she
“cannot rule out whether any of the police officers named in this case used the information he or
she accessed from DAVID to further stalk or otherwise threaten or harass her.” Because Watts
does not make the argument that the Defendants’ purpose was to harass her, the Defendants
cannot be denied summary judgment on that ground. See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.”).
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