                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1980


ROXANA ORELLANA SANTOS,

                Plaintiff – Appellant,

          v.

FREDERICK COUNTY BOARD OF COMMISSIONERS; CHARLES JENKINS,
Frederick County Sheriff, in his official and individual
capacity; JEFFREY OPENSHAW, Frederick County Deputy Sheriff,
in his official and individual capacity; KEVIN LYNCH,
Frederick County Deputy Sheriff, in his official and
individual capacity,

                Defendants – Appellees,

          and

JULIE L. MEYERS, former Assistant Secretary for Homeland
Security of Immigration and Customs Enforcement, in her
official and individual capacity; CALVIN MCCORMICK, Field
Office Director of the ICE Office of Detention and Removal,
in his official and individual capacity; JAMES A. DINKINS,
Special Agent in Charge of the ICE Office of Investigations,
Baltimore, MD, in his official and individual capacity,

                Defendants.

--------------------------------

IMMIGRATION REFORM LAW INSTITUTE,

                Amicus Supporting Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Senior District
Judge. (1:09-cv-02978-BEL)
Argued:   May 15, 2013                Decided:   August 7, 2013


Before DAVIS and WYNN, Circuit Judges, and James R. SPENCER,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge Wynn wrote the opinion, in which Judge Davis and
Judge Spencer concurred.


ARGUED: John Carney Hayes, Jr., NIXON PEABODY, LLP, Washington,
D.C., for Appellant.   Sandra Diana Lee, KARPINSKI, COLARESI &
KARP, P.A., Baltimore, Maryland, for Appellees.      ON BRIEF:
Daniel Karp, KARPINSKI, COLARESI & KARP, Baltimore, Maryland,
for Appellees. Michael M. Hethmon, Garrett R. Roe, IMMIGRATION
REFORM LAW INSTITUTE, Washington, D.C., for Amicus Supporting
Appellees.




                               2
WYNN, Circuit Judge:

      Plaintiff Roxana Orellana Santos appeals the dismissal of

her   42     U.S.C.     §    1983     action         against         the    Frederick         County

(Maryland) Board of Commissioners, the Frederick County Sheriff,

and   two    deputy     sheriffs.           Santos        alleged          that    the    deputies

violated her Fourth Amendment rights when, after questioning her

outside of her workplace, they arrested her on an outstanding

civil    warrant      for     removal       issued        by    Immigration         and       Customs

Enforcement (“ICE”).               The U.S. District Court for the District

of    Maryland      granted         summary          judgment         to     all    defendants,

concluding that Santos’s initial questioning by the deputies did

not     implicate       the        Fourth     Amendment           and       that        the     civil

immigration       warrant         justified          Santos’s        subsequent          stop    and

arrest.

      We agree with the district court that the deputies did not

seize Santos until one of the two deputies gestured for her to

remain seated while they verified that the immigration warrant

was active.        But the civil immigration warrant did not provide

the   deputies     with       a    basis    to       arrest     or    even      briefly       detain

Santos.      Nonetheless, we conclude that the individual defendants

are   immune     from       suit    because       at      the    time      of     the    encounter

neither the Supreme Court nor this Court had clearly established

that local and state law enforcement officers may not detain or

arrest      an   individual         based    on       a   civil       immigration         warrant.

                                                 3
Qualified      immunity     does   not        extend,    however,     to    municipal

defendants.      We therefore affirm the district court’s award of

summary judgment to the deputies and the Sheriff and vacate the

district    court’s       dismissal      of     Santos’s     action   against     the

municipal defendants.



                                          I.

                                          A.

     A native of El Salvador, Santos moved to the United States

in 2006.       On an October morning in 2008, Santos sat on a curb

behind   the    Common    Market   food        co-op    in   Frederick,     Maryland,

where she worked as a dishwasher.                 Santos ate a sandwich while

waiting for her shift to begin.                 From the curb, Santos faced a

grassy area and pond that ran along the rear of the shopping

complex in which the co-op was located.                  A large metal shipping

container stood between her and the shopping complex.                       As Santos

ate, she saw a Frederick County Sheriff’s Office (the “Sheriff’s

Office”) patrol car slowly approach her from her left.                            She

remained seated, in full view of the patrol car, and continued

eating her sandwich.

     Deputy Sheriffs Jeffrey Openshaw and Kevin Lynch were in

the car conducting a routine patrol of the area.                      Although the

Sheriff’s      Office    had   reached    an     agreement     with   ICE    under   9

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

                                          4
immigration enforcement efforts, neither Openshaw nor Lynch was

trained or authorized to participate in immigration enforcement.

     The    deputies    parked    the    patrol        car    on    the   side    of   the

shipping container opposite Santos.                Openshaw and Lynch stepped

out of the patrol car and walked toward Santos, going around

opposite sides of the shipping container to reach her.                                 Both

deputies wore standard uniforms and carried guns.

     Openshaw stopped about six feet away from her and asked her

if she spoke English, to which she responded, “No.”                           J.A. 095,

398-99.      Lynch     stood    closer      to    the    patrol       car.        It   was

immediately apparent to Openshaw that Santos, a native Spanish

speaker,    had   difficulty      communicating         in     English.          Openshaw

asked   Santos    in   English    whether        she    was    on    break,      and   she

replied that she was.           He then asked her if she worked at the

Common Market, and she said she did.               Again in English, Openshaw

asked her whether she had identification, and she responded in

Spanish that she did not.

     At this point, Openshaw stepped away from Santos to speak

privately    with    Lynch     near   the    patrol      car.        Santos      remained

seated.     After a few minutes, Santos recalled that she had her

El Salvadoran national identification card in her purse.                           Still

sitting, she showed the card to the deputies.                       Openshaw took the

card and asked her whether the name on the ID was hers.                                She

told him it was, and he walked back to the car to speak with

                                         5
Lynch.       Santos estimated that by this time at least fifteen

minutes had passed since the deputies first approached her.                        As

the deputies stood together talking, Santos saw Openshaw use his

radio.

      The     deputies     said    that       once    they     received    Santos’s

identification information, they relayed it to radio dispatch to

run a warrant check on Santos.                  After completing the warrant

check,      dispatch    informed    the       deputies   that     Santos    had    an

outstanding ICE warrant for “immediate deportation.”                      J.A. 188.

Following standard procedure, Openshaw asked dispatch to verify

that the ICE warrant was active.               Although he did not know what

dispatch did in this particular case, Openshaw testified that

dispatch typically contacts ICE when verifying an immigration

warrant.      Openshaw also said that at this point he considered

Santos to be under arrest, though he had not yet handcuffed her.

      After dispatch had initially notified the deputies of the

ICE   warrant    but     before    dispatch     had    determined    whether      the

warrant was active, Santos asked the deputies if there was any

problem.      Openshaw replied, “No, no, no,” and held out his hand,

gesturing for her to remain seated.              J.A. 136.

      About    twenty    minutes    after      she    handed   the   deputies     her

national ID card, Santos decided to head into the food co-op to

start her shift.        When she attempted to stand, the deputies, who

just had been informed by dispatch that the warrant was active,

                                          6
grabbed her by the shoulders and handcuffed her.                                    Until this

point, neither deputy had had any physical contact with her.

      The deputies placed Santos in the patrol car, transported

her   to   patrol     headquarters,            and    then          transferred     her     to   a

Maryland    detention       center.           Approximately            forty-five       minutes

after    Santos’s     arrest,          ICE    Senior       Special         Agent   S.   Letares

requested that the detention center hold Santos on ICE’s behalf.

ICE initially held Santos in two Maryland facilities and then

transferred her to a jail in Cambridge, Massachusetts, where she

stayed     until    her    supervised          release          on    November      13,    2008.

Santos v. Frederick Cnty. Bd. of Comm’rs, 884 F. Supp. 2d 420,

425 (D. Md. 2012).



                                               B.

      In November 2009, Santos filed a Section 1983 complaint

against    Openshaw       and    Lynch,       Frederick         County       Sheriff      Charles

Jenkins,     the    Frederick          County        Board      of     Commissioners,        and

several    individuals          from    ICE    and        the   Department         of   Homeland

Security.     The complaint alleged that the deputies violated her

Fourth Amendment rights when they seized and later arrested her.

The complaint also alleged that the deputies violated her rights

under the Equal Protection Clause of the Fourteenth Amendment

because    the     deputies      “approached          .    .    .    and    interrogated     her



                                               7
based solely on her perceived race, ethnicity and/or national

origin.”          J.A. 102.

        All defendants moved to dismiss Santos’s initial complaint

under       Rule    12(b)(6).         The    district        court     dismissed      without

prejudice          the    Section    1983    claims      against       the     deputies    on

grounds that the complaint alleged that the deputies were acting

under the color of federal law and thus the action should have

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

Bureau of Narcotics, 403 U.S. 388 (1971).1                           Santos v. Frederick

Cnty. Bd. of Comm’rs, No: L-09-2978, 2010 WL 3385463, at *3 (D.

Md. Aug. 25, 2010).                 The district court also bifurcated her

supervisory         liability       claims   against         Sheriff    Jenkins      and   the

Board       of     Commissioners,        and        stayed     those     claims      pending

resolution of Santos’s claims against the deputies.                            Id. at *4.

        Santos filed a second amended complaint against the same

defendants,         asserting       essentially       the     same    claims    as    in   the

previously dismissed complaint.                     And she did not recharacterize

her claims against the municipal defendants as Bivens claims.

        After discovery, the deputies moved for summary judgment.

The district court granted the deputies’ motion, concluding that

there       was    no    dispute    of   fact   regarding       whether      the     deputies


        1
       Bivens established a private right of action to remedy
constitutional injuries attributable to individuals acting under
the color of federal law. 403 U.S. at 397.


                                                8
violated Santos’s Fourth Amendment rights.                   Santos, 884 F. Supp.

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

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

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

that   time,    the   civil   ICE    warrant    provided      the   deputies      with

adequate justification for the seizure.                Id.     The district court

further concluded that Santos’s Equal Protection claim failed as

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

violate the Equal Protection Clause if they initiate consensual

encounters solely on the basis of racial considerations.2                     Id. at

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

Santos’s       constitutional       rights,     the     district      court       also

dismissed      Santos’s    claims     against       Sheriff    Jenkins      and    the

Frederick County Board of Commissioners.               Id. at 432.



       2
        Santos did not appeal the district court’s Equal
Protection decision, and it is therefore not before us.
Nevertheless, we note that while this Circuit has not yet
addressed the issue, see United States v. Henderson, 85 F.3d
617, 1996 WL 251370, at *2 (4th Cir. 1996) (unpublished table
decision) (declining to decide “whether selecting persons for
consensual interviews based solely on race raises equal
protection concerns”), two other Circuit Courts have indicated
that consensual encounters initiated solely based on race may
violate the Equal Protection Clause, United States v. Avery, 137
F.3d 343, 353 (6th Cir. 1997) (“[C]onsensual encounters may
violate the Equal Protection Clause when initiated solely based
on racial considerations.”); United States v. Manuel, 992 F.2d
272, 275 (10th Cir. 1993) (“[S]electing persons for consensual
interviews based solely on race is deserving of strict scrutiny
and raises serious equal protection concerns.”).


                                        9
       Santos    moved    for   reconsideration     under   Federal    Rule    of

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

decisions authored after the district court’s summary judgment

hearing holding that state and local governments lack inherent

authority       to    enforce   civil   federal     immigration     law.      The

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

other federal court decisions and the Supreme Court’s landmark

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

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

officers may not enforce civil immigration law, the deputies

were still entitled to qualified immunity for their conduct.

J.A. 624.       Santos timely appealed.



                                        II.

       The Fourth Amendment secures an individual’s right to be

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

amend. IV.           In determining whether a law enforcement officer

unconstitutionally seized an individual, we engage in a multi-

step inquiry.          Because “not every encounter between a police

officer and a citizen is an intrusion requiring an objective

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

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

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

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

                                        10
1991).       If we conclude the individual was “seized,” we then

determine      whether       the    law   enforcement       officer      had    adequate

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

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

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

be   able    to     obtain    relief      if    the    defendant    is    entitled         to

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

(1982).

       Santos raises objections to the district court’s rulings on

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

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

“seized” when the deputies initially approached and questioned

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

Fourth Amendment rights when they detained and later arrested

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

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

rights,      they    were    entitled     to        qualified    immunity      for    their

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

novo   and    viewing       facts   and   all       reasonable    inferences         in   the

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

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

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




                                               11
                                       III.

                                        A.

       Regarding the threshold question of whether the encounter

constituted a Fourth Amendment seizure, the Supreme Court has

identified    three       categories     of        police-citizen     encounters.

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

Each   category    represents   differing          degrees   of   restraint   and,

accordingly, requires differing levels of justification.                      See

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

police-citizen     interaction,    do        not    constitute     seizures   and,

therefore,    do    not    implicate     Fourth        Amendment     protections.

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

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

require reasonable, articulable suspicion of criminal activity.

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

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

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

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

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

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

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

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

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

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

                                        12
a reasonable person would have believed that he was not free to

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

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

example,   police    officers    engage        an    individual    in    routine

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

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

police questioning does not constitute a seizure.”).

     We have identified a number of non-exclusive factors to

consider   in    determining    whether     a       police-citizen      encounter

constitutes a seizure:

     the number of police officers present during the
     encounter, whether they were in uniform or displayed
     their weapons, whether they touched the defendant,
     whether they attempted to block his departure or
     restrain   his   movement,   whether  the    officers’
     questioning was non-threatening, and whether they
     treated the defendant as though they suspected him of
     “illegal activity rather than treating the encounter
     as ‘routine’ in nature.”

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

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

Weaver, 282 F.3d at 310.

     Although the inquiry is objective—and thus the subjective

feelings of the law enforcement officers and the subject are

irrelevant—we     also    consider   certain        individual    factors   that

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

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

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

                                       13
familiarity with English may be a relevant consideration.                                Id.

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

determine whether an encounter is consensual by considering the

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



                                           B.

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

the Fourth Amendment when the deputies “surrounded her and began

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

Santos      emphasizes,      among    other       factors,         that    the    deputies

approached her from opposite sides of the shipping container,

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

deputies     wore    uniforms      and    carried       guns,       and    that   she    was

unfamiliar with English.              By contrast, the defendants contend

that the deputies’ interaction with Santos remained consensual

until after the deputies had been informed of the outstanding

warrant.

       The district court decided that Santos was not seized when

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

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

circumstances before us, we must agree.

       The deputies approached Santos during the daytime and in a

public area where employees would “frequently” take breaks or

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

                                           14
encounter occurring in “public parking lot in the middle of the

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

“public      setting”         diminished        coerciveness       of     police-citizen

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

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

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

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

deputies       stood       well   away    from    Santos-Deputy          Openshaw          stood

approximately         six    feet    from   her,     and    Deputy       Lynch       was    even

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

to leave had she elected to do so.

      No evidence suggests that the deputies used a commanding or

threatening         tone     in   questioning      Santos.         And    the    types       of

questions      the     deputies        posed-asking        her    for    identification,

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

break-are       the    types      of     questions    law        enforcement         officers

generally may ask without transforming a consensual encounter

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

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

have no basis for suspecting a particular individual, they may

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

the deputies did not touch Santos until they placed her under

arrest.



                                            15
      Additionally,    none    of   the       factors   Santos    highlighted

sufficiently    call    into    question       our   conclusion       that   the

encounter was consensual at inception.               Although two deputies

were present, only Openshaw approached and questioned Santos.

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

2008) (holding that encounter was consensual when there were

multiple officers present but only one officer approached the

individual).    Moreover, absent other indicia that an encounter

is   nonconsensual,    the   presence    of    two   officers    is   generally

insufficient.   Mendenhall, 446 U.S. at 555 (holding that police-

citizen encounter was consensual when two officers questioned

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

the deputies approached her from opposite sides of the shipping

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

walk away.

      Santos also notes that the deputies were wearing standard

uniforms and carrying guns.         But the deputies never brandished

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

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

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

unlikely to contribute to the coerciveness of [an] encounter

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

the language barrier may have added to the coerciveness of the

situation, because no one factor is dispositive, the language

                                    16
barrier,    on    its    own,     is   insufficient      to   turn    the    otherwise

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

310.



                                          C.

       Even though the encounter initially did not implicate the

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

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

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

the district court, we conclude that the consensual encounter

became a Fourth Amendment seizure when Openshaw gestured for

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

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

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

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

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

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

Openshaw’s       gesture    would      have    communicated      to    a    reasonable

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

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

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

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

individuals were seized for purposes of the Fourth Amendment



                                          17
when they “passively acquiesced” in response to officer’s show

of authority).



                                               IV.

       Having     concluded        that    Santos          was    seized     when   Openshaw

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

the    deputies     violated        her     constitutional            rights     when     they

detained and subsequently arrested her on the civil ICE warrant.

Santos argues that her seizure and arrest violated the Fourth

Amendment      because       neither      of    the    deputies        was    certified    or

authorized to engage in enforcement of federal civil immigration

law.



                                               A.

       Before     addressing        the    merits      of        Santos’s    constitutional

claims,      we   first      must    determine         whether        this     question    is

properly      before    us    on    appeal.           The    defendants       contend     that

Santos       abandoned       any     claim          that     the      deputies’        actions

constituted       the     unauthorized           enforcement          of     federal    civil

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

argument during oral argument on the summary judgment motion.

Both arguments are without merit.

       First, the defendants argue that Santos abandoned any claim

that   the    deputies       had    no    authority         to    enforce    federal    civil

                                               18
immigration law by failing to restyle her action as a Bivens

claim after the district court dismissed her initial complaint

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

the    district      court      held     that     the     initial     complaint    was

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

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

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

be considered to be acting under color of federal authority for

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

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

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

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

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

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

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

Santos properly refiled her complaint as a Section 1983 action.

       Further,     the    defendants      contend       that   Santos    waived   any

argument that the deputies lacked authority to make an arrest

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

summary judgment motion, her counsel said that “we certainly

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

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

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

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

                                           19
criminal warrant.            And earlier during oral argument, Santos’s

counsel said that local police lack authority to enforce federal

immigration     laws.          Moreover,        Santos’s      summary        judgment      brief

unambiguously         argued    that       the       deputies      lacked     authority      to

enforce civil federal immigration law.                            The defendants cite no

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

statement made during oral argument waives an argument clearly

raised in a brief.



                                                B.

      Having concluded that the issue is properly before us, we

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

violated her Fourth Amendment rights by seizing and arresting

her   based     on    the    civil        ICE    removal      warrant.            Because   the

Constitution grants Congress plenary authority over immigration,

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

state and local law enforcement officers may participate in the

enforcement      of     federal       immigration           laws     only    in    “specific,

limited circumstances” authorized by Congress, Arizona v. United

States, 132 S. Ct. at 2507.

      Local     law     enforcement         officers         may     assist       in     federal

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

which authorizes the Attorney General to enter into agreements

with local law enforcement agencies that allow specific local

                                                20
officers       to     perform      the      functions         of     federal      immigration

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

in the absence of a written agreement, local law enforcement

agencies     may      “cooperate          with    the        Attorney      General        in    the

identification,            apprehension,      detention,           or   removal      of       aliens

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

When   enforcing           federal    immigration            law    pursuant      to      Section

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

direction       and        supervision       of       the     Attorney      General.”             §

1357(g)(3).

       Other statutory provisions authorize local law enforcement

officers       to         engage     in    immigration             enforcement           in     more

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

the Attorney General to authorize local law enforcement officers

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

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

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

officers to arrest illegally present aliens who have “previously

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

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

(allowing local law enforcement officers to arrest individuals

for bringing in and harboring certain aliens).

       Although not clearly addressed by federal statute, state

and    local        law     enforcement      officers          also       may   be       able    to

                                                 21
investigate,        detain,     and     arrest          individuals        for      criminal

violations of federal immigration law.                          In particular, before

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

Fourth Amendment nor federal immigration law precludes state and

local enforcement of federal criminal immigration law.                                   See,

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

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

enforcement officials may detain or arrest an individual for

criminal violations of federal immigration law without running

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

supported     by    reasonable       suspicion       or    probable       cause      and   is

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

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

occasion     to    address    whether       federal       immigration         law   preempts

state   and       local     officers        from    enforcing          federal      criminal

immigration laws.           And the Supreme Court has expressly left that

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

     Although the Supreme Court has not resolved whether local

police officers may detain or arrest an individual for suspected

criminal immigration violations, the Court has said that local

officers      generally       lack     authority           to     arrest       individuals

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

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

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

                                             22
“[i]f   the      police    stop    someone       based    on     nothing       more       than

possible      removability,        the    usual     predicate        for       arrest      is

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

held unconstitutional a provision in an Arizona statute that

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

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

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

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

Stat. Ann.     § 13-3883(A)(5)).

     Lower       federal      courts      have     universally-and             we     think

correctly-interpreted         Arizona      v.    United     States       as    precluding

local law enforcement officers from arresting individuals solely

based on known or suspected civil immigration violations.                                  See

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

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

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

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

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

     The    rationale      for    this    rule    is     straightforward.             A    law

enforcement officer may arrest a suspect only if the officer has

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

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

Because civil immigration violations do not constitute crimes,

suspicion or knowledge that an individual has committed a civil

                                           23
immigration      violation,            by   itself,           does    not       give    a   law

enforcement      officer          probable           cause     to    believe        that    the

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

at    1000-01.         Additionally,            allowing        local     law     enforcement

officers to arrest individuals for civil immigration violations

would infringe on the substantial discretion Congress entrusted

to the Attorney General in making removability decisions, which

often require the weighing of complex diplomatic, political, and

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

Ct. at 2506-07.

       Although Arizona v. United States did not resolve whether

knowledge or suspicion of a civil immigration violation is an

adequate    basis      to    conduct        a    brief        investigatory         stop,   the

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

their immigration status would raise constitutional concerns.”

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

readily     extends         to     brief        investigatory           detentions.         In

particular,      to     justify        an       investigatory         detention,        a   law

enforcement officer must have reasonable, articulable suspicion

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

And    because    civil          immigration         violations       are     not      criminal

offenses,     suspicion           or    knowledge            that    an     individual      has

committed a civil immigration violation “alone does not give



                                                24
rise    to    an     inference       that       criminal       activity       is    ‘afoot.’”

Melendres, 695 F.3d at 1001.

       Therefore,       we    hold        that,      absent        express    direction       or

authorization by federal statute or federal officials, state and

local   law    enforcement          officers         may    not    detain     or   arrest      an

individual solely based on known or suspected civil violations

of federal immigration law.

       Like    the    district       court,       we    conclude      that    the     deputies

seized Santos for purposes of the Fourth Amendment when Deputy

Openshaw gestured for her to stay seated after dispatch informed

him of the outstanding civil ICE deportation warrant.                               See supra

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

detaining      Santos      was      the    civil        ICE   warrant.          Yet    as     the

defendants concede, the deputies were not authorized to engage

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

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

thus    lacked      authority       to     enforce         civil    immigration       law    and

violated Santos’s rights under the Fourth Amendment when they

seized her solely on the basis of the outstanding civil ICE

warrant.



                                                C.

       We    find    unpersuasive         the     defendants’        arguments        that    the

deputies      lawfully       detained      and       arrested       Santos.        First,     the

                                                25
defendants          contend    that       the    deputies         properly      seized    Santos

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

allows state law enforcement officers to “cooperate” with the

federal       government           in     immigration            enforcement,      even        when

officers are not expressly authorized to do so under a Section

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

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

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

decision       of     state     officers         to     arrest      an     alien    for       being

removable      absent        any    request,      approval,         or    other    instruction

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

Arizona       v.     United        States       makes    clear       that       under     Section

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

for civil immigration violations absent, at a minimum, direction

or authorization by federal officials.

       The defendants assert that Santos’s detention and arrest

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

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

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

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

whether       ICE    directed       the     deputies        to    detain     Santos      at    some

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

deputies to detain her.                   We conclude that the deputies seized

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

                                                 26
had learned of the outstanding ICE warrant but before dispatch

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

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

behalf came fully forty-five minutes after Santos had already

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

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

         And    the     ICE    detainer          does       not     cleanse      the    unlawful

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

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

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

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

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

constitutionally         valid       depends      in     turn      upon    whether,       at   the

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

make    it-whether       at    that       moment       the    facts       and    circumstances

within    their       knowledge        and       of     which       they    had        reasonably

trustworthy information were sufficient to warrant a prudent man

in believing that the petitioner had committed or was committing

an offense.” (emphasis added)).

       The defendants also suggest that in Guijon-Ortiz and United

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

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

constitutes reasonable suspicion to detain an individual pending

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

                                               27
reliance on Guijon-Ortiz and Soriano-Jarquin, both of which were

decided before Arizona v. United States, is misplaced.

       The defendants correctly note that in Guijon-Ortiz we said

that    a   county    sheriff’s         deputy      had     reasonable        suspicion       to

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

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

deputy      learned   that       the    defendant      had      presented      him     with   a

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

inapposite because the deputy had reasonable suspicion that the

defendant violated a criminal provision of federal immigration

law-knowingly         using       a     false         or       fraudulent      immigration

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

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

in     Guijon-Ortiz        the    deputy        detained         and    transported         the

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

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

here.

       In Soriano-Jarquin, we considered whether a state police

officer     violated      the    Fourth       Amendment        when,    during     a   lawful

traffic      stop,    the     officer         asked    passengers        in    a     van    for

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

driver of the van that the passengers were illegal aliens and

while diligently pursuing the independent basis for the traffic

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

                                               28
the    van        pending    arrival      of     ICE    agents.          Id.   at   496-97.

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

distinguishable             because     the      police        officer     detained       the

passengers at ICE’s express direction.

       Third,       the     defendants     assert       that    the   deputies      lawfully

detained Santos because there is no evidence in the record that

the    ICE    warrant        was   civil       rather    than    criminal.          But   the

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

the Supreme Court has long characterized deportation as a civil

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

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

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

evidence the ICE warrant was civil in nature.

       More significantly, even if the record had been devoid of

evidence regarding whether the warrant was civil or criminal,

the defendants’ argument misses the mark because law enforcement

officers,          not     detainees,      are       responsible        for    identifying

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

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

reasonable suspicion, a police officer must offer ‘specific and

       3
       Padilla characterizes “removal” as a civil proceeding.
130 S. Ct. at 1481.    In 1996, Congress combined “deportation”
proceedings with “exclusion” proceedings to form a single
“removal” proceeding.   Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-208, § 304(a), 110 Stat.
3009-587, adding 8 U.S.C. § 1229a.


                                                29
articulable facts’ that demonstrate at least ‘a minimal level of

objective justification’ for the belief that criminal activity

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

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

justify a seizure, the seizure violates the Fourth Amendment.

Therefore,       it    was    the        deputies’     responsibility         to    determine

whether    the    warrant          was    for   a    criminal   or      civil     immigration

violation       before    seizing          Santos.       And    because     they     did     not

determine that the warrant was criminal in nature (nor could

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

      Relatedly, the defendants suggest that the ICE warrant was

criminal        because       it     was     included      in     the      National       Crime

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

legislation for the NCIC provides only that crime records can be

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

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

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

General      to        “acquire,           collect,       classify,         and      preserve

identification,           criminal         identification,           crime,        and    other

records,”       does    not    authorize            inclusion   of    civil       immigration

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

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

(explaining that the plain language of Section 534, ordinary

canons     of     statutory          construction,        and      legislative           history

                                                30
demonstrate that the government lacks authority to include civil

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

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

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

     Nonetheless, in the aftermath of the September 11, 2001

attacks,   the   Attorney     General    authorized     inclusion     of   civil

immigration records in the NCIC database, including information

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

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

Remarks on the National Security Entry-Exit Registration System

(June             6,            2012),                 available              at

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

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

with civil immigration records to the present.               See Immigration

&   Customs    Enforcement,    Fact     Sheet:   Law    Enforcement    Support

Center                  (May                     29,                       2012),

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

contrary to the defendants’ assertion, the NCIC database does

indeed include civil immigration records.

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

Fourth Amendment when they seized her after learning that she

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

express authorization or direction.



                                      31
                                          V.

                                          A.

       Even though the deputies violated Santos’s rights under the

Fourth     Amendment,       the    deputies       still   may    be     entitled    to

qualified immunity if the right was not clearly established at

the time of the seizure.

       The doctrine of qualified immunity “balances two important

interests-the       need    to    hold   public    officials     accountable       when

they     exercise    power       irresponsibly      and   the    need     to   shield

officials from harassment, distraction, and liability when they

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

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

enforcement officers from personal liability for civil damages

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

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

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

omitted).

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

employee is entitled to qualified immunity.                      First, we decide

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

favorable    to     the    plaintiff,      establish      that   the     [government

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

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

determine that a violation occurred, we consider whether the

                                          32
constitutional right was “clearly established” at the time of

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

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

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

sequence”).

      As explained above, the deputies violated Santos’s Fourth

Amendment rights when they seized her based on the civil ICE

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

whether the constitutional right was “clearly established” when

the arrest occurred.         We apply an objective test to determine

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

reasonable person in the official’s position could have failed

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

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

(internal quotation omitted).

      Because government officials cannot “reasonably be expected

to   anticipate      subsequent   legal      developments,”     the    right    must

have been clearly established at the time an official engaged in

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

there need not have been a judicial decision squarely on all

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

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

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

right violated already have been recognized by a court in a

                                        33
specific      context    before     such       right    may     be     held     ‘clearly

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

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

still be on notice that their conduct violates established law

even in novel factual circumstances”).

     For      three    reasons,    we    conclude      that     when      the    deputies

detained Santos, it was not clearly established that local law

enforcement     officers    may    not     detain      or   arrest     an     individual

based solely on a suspected or known violation of federal civil

immigration     law.      First,    the    Supreme      Court    did      not    directly

address the role of state and local officers in enforcement of

federal civil immigration law until Arizona v. United States,

which   was    decided    more    than    three    years      after    the      deputies’

encounter with Santos.

     Second, until today, this Court had not established that

local law enforcement officers may not seize individuals for

civil   immigration        violations.            Therefore,         no     controlling

precedent put the deputies on notice that their actions violated

Santos’s constitutional rights.

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

Circuits were split on whether local law enforcement officers

could arrest aliens for civil immigration violations.                           Compare,

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

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

                                          34
the government must point to specific facts demonstrating that

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

[the     defendant]      was    engaged       in    some      nonimmigration-related

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

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

state    law-enforcement        officers      have    the     general    authority     to

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

“if     there    are     no    cases    of      controlling       authority     in    the

jurisdiction in question, and if other appellate federal courts

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

the right cannot be clearly established for qualified immunity

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

2001).

       In sum, even though the deputies unconstitutionally seized

Santos, qualified immunity bars her individual capacity claims

because the right at issue was not clearly established at the

time of the encounter.



                                             B.

       Santos     further      argues    that       even     if   qualified   immunity

precludes       her    individual      capacity      claims,      the   district     court

improperly       dismissed     her     claims      against    the   Frederick      County

Board of Commissioners and against Sheriff Jenkins and Deputies

Openshaw and Lynch in their official capacities.                            Plaintiffs

                                             35
alleging constitutional injuries may bring suits under Section

1983 against municipalities for unconstitutional actions taken

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

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

plaintiff may bring a Section 1983 action against governmental

officials in their official or representative capacity.                    Hafer

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

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

[municipality].”    Id.

     The Supreme Court has emphasized, however, that municipal

liability   under   Section     1983    does     not   amount   to    respondeat

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

municipality is subject to Section 1983 liability only when its

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

whose edicts or acts may fairly be said to represent official

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

The requirement that the allegedly unconstitutional act stems

from an established municipal policy or the actions of a final

policymaker ensures that the municipality is “responsible” for

the alleged violations of a plaintiff’s constitutional rights.

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

     Unlike with government officials sued in their individual

capacity, qualified immunity from suit under Section 1983 does

not extend to municipal defendants or government employees sued

                                       36
in their official capacity.             Owen v. City of Independence, Mo.,

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

     The    district        court    dismissed     Santos’s    official-capacity

claims     and     claims    against        the   Frederick    County   Board   of

Commissioners because it concluded that the deputies did not

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

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

Fourth Amendment rights when they seized her solely on the basis

of the civil ICE warrant and because qualified immunity does not

extend to municipal defendants, this was error.

     Having (erroneously) determined that the deputies did not

violate Santos’s constitutional rights, the district court did

not have occasion to address whether the municipal defendants

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

remand,     the     district        court    should     determine    whether    the

deputies’        unconstitutional       actions       are   attributable   to   an

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

final county policymaker.



                                            VI.

     In sum, the district court correctly concluded that the

deputies seized Santos when Openshaw gestured for her to remain

seated after the deputies learned of the outstanding civil ICE

removal warrant.        But because knowledge that an individual has

                                            37
committed      a    civil      immigration     violation   does    not     constitute

reasonable suspicion or probable cause of a criminal infraction,

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

not violate the Fourth Amendment.

       Nonetheless,         the     deputies     are    entitled     to     qualified

immunity because the right at issue was not clearly established

at    the    time   of    the     encounter.     Qualified    immunity      does   not

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

court       erred   in    dismissing     Santos’s      municipal     and    official-

capacity claims.

       Therefore,         we    affirm    the     district    court’s       decision

regarding        Santos’s       individual-capacity        claims,       vacate    its

decision regarding her municipal and official-capacity claims,

and     remand      the     case    to   the    district     court    for     further

proceedings in accordance with this opinion.

                                                               AFFIRMED IN PART,
                                                                VACATED IN PART,
                                                                    AND REMANDED




                                           38
