NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-3240 ______________

STANLEY SUMMERVILLE; FOMBAH SIRLEAF,

v.

COLONEL JOSEPH RICK FUENTES; DETECTIVE SERGEANT MICHAEL GREGORY, badge #6032; DETECTIVE SERGEANT J. GAUTHIER, badge #5593; LIEUTENANT J. HARRISON, badge #5277; DETECTIVE SERGEANT FIRST CLASS P. CIANO, badge #5133; DETECTIVE E. BOBAL, badge #6775; DETECTIVE SERGEANT T. KELSHAW, badge #6231; DETECTIVE R. JOAQUIN, badge #6853; DETECTIVE P. CHARIAMONTE, badge #6348 Detective Sergeant Michael Gregory, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 2-14-CV-07653) District Judge: Hon. Kevin McNulty ____________

Argued on March 17, 2021 ____________

Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges

(Filed: September 10, 2021) ____________ Adam Gibbons Matthew J. Lynch [ARGUED] Office of Attorney General of New Jersey Division of Law 25 Market Street R.J. Hughes Justice Complex 1st Floor, West Wing Trenton, NJ 08625 Counsel for Appellant

Gerald Graves [ARGUED] J. Graves Associates 4 South Orange Avenue, #117 South Orange, NJ 07079 Counsel for Appellees

____________

OPINION* ____________

PHIPPS, Circuit Judge.

This case is about timing – bad timing and prolonged timing – for two Liberian

nationals, lawfully present in the United States. Those men, Fombah Sirleaf and Stanley

Summerville, were loading suitcases in a vehicle at a New Jersey outlet mall parking lot

while a drug deal took place one lane over. Law enforcement officers detained them for

roughly 90 minutes in connection with that crime, which they did not commit.

Based on the apprehension itself as well as its duration, Sirleaf and Summerville

sued several officers individually under

for violating their Fourth

Amendment rights. The District Court had federal-question and civil-rights jurisdiction

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 over their claims. See

, 1343. After discovery, the officers moved for

summary judgment and invoked qualified immunity. The District Court granted many

aspects of the officers’ motion but denied qualified immunity to the officer overseeing

the investigation, Detective Michael Gregory.

Through this interlocutory appeal, Detective Gregory challenges that order

denying him qualified immunity. As explained below, qualified immunity excuses

Detective Gregory for his role in the initial stop and two segments of the 90-minute

detention, but more specific findings are necessary regarding the middle 30 or so minutes

of that time period. Thus, we will reverse in part and vacate and remand in part the

District Court’s order.

I.

On October 21, 2014, a team of New Jersey law enforcement officers were

pursuing a lead from a confidential source about a heroin transaction. Officers surveilled

and followed the suspect, Richard Parker, who was driving a white Lexus, from his work

to his home, and eventually to an outlet mall, where he parked in a crowded lot.

At the same time, in the same parking lot, about thirty feet away, across the

driving lane, were Sirleaf and Summerville. They were outside of a black Mercedes SUV

loading suitcases with several objects. Those actions caught the attention of the eight-

member team of law enforcement officers who were monitoring Parker. No one on that

team noticed any communications, however, between Parker and Sirleaf or Summerville.

But Parker was communicating with someone in the parking lot. An occupant

from the car next to his entered the Lexus for about 20 seconds, exited, and drove off.

3 Shortly afterwards, Parker started to drive away, and Detective Gregory then ordered that

everyone remaining on the scene – Parker, Sirleaf, and Summerville – be detained. In

searching Parker’s car, officers found a duffle bag with 200 bricks of heroin and $1,400

cash. Officers also approached Sirleaf and Summerville on foot with guns drawn and

ordered them to lie down on the ground. Officers frisked them for weapons, handcuffed

them, and questioned them for about ten minutes regarding Parker and the drug deal.

But as the officers learned, Sirleaf and Summerville had nothing to do with the

drug deal. Sirleaf explained to the officers that he arrived from Liberia the day before,

was the director of the national law enforcement organization there, had traveled to the

United States to look at military equipment, and had assisted United States law

enforcement in the past. Both Sirleaf and Summerville described that they were packing

suitcases with a large volume of over-the-counter drugs to transport to Liberia to assist

with the Ebola outbreak. The officers requested to search the car, and Summerville

consented. By the time that search was completed and yielded nothing suspicious, Sirleaf

and Summerville had been detained over 30 minutes.

Detective Gregory then went with another officer to the mall security office to

review surveillance video footage to confirm Sirleaf and Summerville were not involved

with Parker. That venture took approximately 30 minutes, but afterwards Detective

Gregory was convinced that Summerville and Sirleaf were not involved in any narcotics

transaction. He then instructed the officers on the scene that they could release Sirleaf

and Summerville if they had no further reason to detain them.

4 At that point, one of the officers on the scene, Detective Marc Friedenberger, who

has not been sued in this case, continued to detain Sirleaf and Summerville. He did so to

call the FBI’s Joint Terrorism Task Force to verify Sirleaf’s story regarding his

citizenship and occupation given at the initial questioning. That 30-minute inquiry

produced nothing irregular. With that information, and after 90 minutes of detention, the

officers released Sirleaf and Summerville.

II.

Section 1983 permits suits against persons acting under color of state law for

violating federal rights. See

. The doctrine of qualified immunity

insulates individual-capacity defendants from § 1983 liability in two potentially

overlapping instances: when their challenged actions do not violate a federal right and

when such a right is not clearly established. See Hernandez v. Mesa,

(2017); Pearson v. Callahan,

(2009). A denial of qualified

immunity – to the extent it is premised on an issue of law – is immediately reviewable on

appeal under the collateral order doctrine. See Mitchell v. Forsyth,

(1985) (“[A] district court’s denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’ within the meaning of

. . . .”). Through this timely interlocutory appeal, Detective Gregory challenges

two legal aspects of the District Court’s denial of qualified immunity: that neither the

initial detention nor its length violated clearly established Fourth Amendment rights.

The Supreme Court has emphasized that for a constitutional right to be clearly

established, it must be defined with a high degree of specificity. See District of Columbia

5 v. Wesby,

(2018); Mullenix v. Luna,

(2015) (per

curiam). A clearly established right “must be sufficiently clear that every reasonable

official would [have understood] that what he is doing violates that right.” Reichle v.

Howards,

(2012) (alteration in original) (internal quotation marks

omitted). In some contexts, such as excessive force claims, where the constitutional right

depends heavily on circumstances, see, e.g., Graham v. Connor,

(1989); Sharrar v. Felsing,

(3d Cir. 1997), the degree of specificity

must be greater to ensure that only plainly incompetent law enforcement officers and

those who knowingly violate the law are excluded from qualified immunity. See City of

Escondido v. Emmons,

(2019) (per curiam); Kisela v. Hughes,

(2018) (per curiam); El v. City of Pittsburgh,

(2020).

A violation of Fourth Amendment rights related to a detention, although still

highly dependent on circumstances, does not hinge on the same degree of factual detail as

other Fourth Amendment violations. It is clearly established that law enforcement

officers may briefly detain a person if they have a reasonable, articulable suspicion that

criminal activity is afoot. See Illinois v. Wardlow,

(2000); Terry v.

Ohio,

(1968); United States v. Johnson,

(3d Cir. 2010).

That standard is objective (based on a reasonable officer) not subjective (based on the

specific officer). See United States v. Arvizu,

(2002). In assessing the

reasonableness of the detention, courts consider the totality of the circumstances, but

“[a]n individual’s presence in an area of expected criminal activity, standing alone, is not

6 enough to support a reasonable, particularized suspicion that the person is committing a

crime.” Wardlow,

. Similarly, it is clearly established that, although

several factors bear on the constitutionality of a detention’s duration, officers must act

with reasonable diligence and may not unreasonably delay in confirming or dispelling

their suspicions of criminal activity. See United States v. Sharpe,

(1985) (explaining that police must diligently investigate to “confirm or dispel their

suspicions quickly”); see also United States v. Place,

(1983)

(accounting for “whether the police diligently pursue[d] their investigation” in assessing

the length of the detention); Johnson,

(evaluating “whether the manner in

which the stop conducted was ‘reasonably related in scope to the circumstances which

justified the interference in the first place’” (quoting Terry, 392 U.S. at 19–20)).

A. The Basis for the Detention

The initial detention of Sirleaf and Summerville did not violate their clearly

established Fourth Amendment rights. Evaluated objectively, Detective Gregory had a

reasonable, articulable suspicion to detain them. As a matter of law, such a suspicion

could not arise merely because the men were nearby a suspected drug deal. See

Wardlow,

. But here, their actions – loading and unloading suitcases

outside of a car – were consistent with them having a role in that nearby drug transaction,

either as participants or as look-outs. The open factual issue identified by the District

Court – whether Detective Gregory knew that a hand-to-hand drug deal actually took

place – does not prevent that conclusion. Due to Sirleaf and Summerville’s proximity to

a suspected drug deal and their unusual activity consistent with involvement in that

7 undertaking, a reasonable, articulable suspicion existed with or without the additional

knowledge that a drug deal had transpired. See, e.g., Terry, 392 U.S. at 29–31 (holding

that a brief stop-and-frisk did not violate the Fourth Amendment – even without the

officer’s knowledge that a crime had actually been committed). Thus, as a matter of law,

the initial stop did not violate Sirleaf or Summerville’s clearly established Fourth

Amendment rights.

B. The Length of the Detention

Sirleaf and Summerville also sued Detective Gregory for the overall length of the

detention. Although 90 minutes is a long time for a ‘brief’ stop, Detective Gregory

contends that precedent does not clearly establish that 90 minutes is categorically too

long. If the analysis consisted of only that consideration, then Detective Gregory would

be correct, as precedent does not clearly establish a hard cut-off time of 90 minutes (or

less) for a brief detention. But the constitutionality of a detention’s duration also depends

on officer diligence. See Sharpe, 470 U.S. at 685–86; Place,

. And it is

clearly established that an officer may not delay a stop to conduct an investigative

function if, through reasonable diligence, that task could have been performed earlier in

the detention. See Sharpe, 470 U.S. at 685–86; Place,

. To evaluate

officer diligence, the 90-minute stop can be trisected into intervals of approximately 30

minutes.

Detective Gregory merits qualified immunity for the first approximately 30

minutes of the detention. In that time, the officers secured Summerville and Sirleaf,

questioned them, and then conducted a consented-to vehicle search. Because those tasks

8 were not unduly delayed, the first third of the detention was not unreasonable, and the

District Court erred in denying qualified immunity to Detective Gregory for that portion

of the stop.

But after completion of those tasks, officers continued to detain Summerville and

Sirleaf while Detective Gregory and another officer went to the mall security office to

view a parking lot surveillance video. Detaining a suspect to review surveillance video is

not categorically unreasonable. But here, that undertaking did not begin until 30 minutes

into the stop, and the District Court found that, in the exercise of reasonable diligence,

that task could have been performed sooner. See Summerville v. Gregory,

, at *16 (D.N.J. Aug. 29, 2019) (“This record does not suggest any reason that

this multi-officer team could not have checked the surveillance video . . . while Sirleaf

and Summerville were being questioned.”). But critically, the District Court did not

make a specific finding as to Detective Gregory’s personal involvement in that aspect of

the delay. See Grant v. City of Pittsburgh,

(3d Cir. 1996) (requiring

courts to “analyze separately, and state findings with respect to, the specific conduct of

each individual [officer]”). Although a narrow, limited record review may occur on

interlocutory appeal of a denial of qualified immunity, if it would be too cumbersome,

this Court may vacate the order denying qualified immunity and remand for such

findings. See Williams v. City of York,

(3d Cir. 2020). And here, it is

too cumbersome to examine Detective Gregory’s personal involvement in the delayed

review of the surveillance video. A preliminary review suggests that, on the one hand,

9 Detective Gregory was in charge of the investigation,1 but, on the other hand, he may

have been instructed by a more senior officer on site to review the surveillance video.2

Perhaps those differing accounts can be reconciled, but that task awaits the District Court

on remand. And if on remand, the District Court finds that Gregory had the requisite

personal involvement, it must still assess whether a reasonable officer with the

information available to Gregory would have checked the video simultaneously with the

questioning, and that determination may depend on when information became available

to Gregory.3 See Anderson v. Creighton,

(1987) (explaining that

objective reasonableness under the Fourth Amendment “will often require examination of

the information possessed by the searching officials”).

1 See, e.g., Friedenberger Depo. (JA193) (testimony from an officer on the scene that Gregory was the “trooper in charge”); Harrison Depo. (JA553 & 556) (testimony from the highest-ranking officer on location that Gregory was in charge of the investigation and that “[h]e was calling the shots”); Ciano Depo. (JA568) (testimony from a higher- ranking officer on site that Gregory was “the supervisor, the case agent for that investigation.”). 2 See, e.g., Gregory Certification ¶ 19 (JA154) (stating that he was “directed” by a higher ranked officer on location, Detective Sergeant First Class Peter Ciano, “to proceed to the Mall’s security office to check any surveillance video that could confirm or further dispel any suspicion that [Sirleaf and Summerville] were involved with Parker.”); Ciano Depo. (JA165) (testimony from Ciano that he “instructed Gregory and [another officer] to watch the video . . . [to] make sure that [Sirleaf and Summerville] were involved”). Compare Defs.’ Statement of Material Facts ¶ 53 (JA87) (stating that “[a]t the direction of [Detective Sergeant] Ciano, Detective[] Gregory and [the other officer] went to the Mall’s Security office to review security camera footage”), with Pls.’ Resp. to Defs.’ Statement of Material Facts ¶ 53 (JA316) (admitting that statement and including supplemental facts about information that Gregory learned from reviewing the video). 3 Cf. Ciano Depo. (JA165) (testimony from Ciano explaining that he instructed Gregory to watch the surveillance video because he had “done several jobs in the mall” and knew that it had a “good surveillance system.”).

10 The final third of the stop involves the most delayed inquiry – the detention of

Sirleaf and Summerville pending verification with the FBI’s Joint Terrorism Task Force.

The District Court did not make a specific finding of Detective Gregory’s personal

involvement in that detention. But for that aspect of his involvement, review of the

record is not too cumbersome. See Williams,

. After watching the

surveillance video, Detective Gregory telecommunicated to the officers on the scene that

Sirleaf and Summerville were free to go (unless the officers had, in the interim,

discovered a reason to detain them). Upon receiving that message, Detective

Friedenberger decided to continue the detention while he checked with the Joint

Terrorism Task Force. Although nothing in the record justifies such a delay in initiating

that inquiry, nothing in clearly established law subjects Detective Gregory to liability

after he gave the order to release Sirleaf and Summerville.4 To the contrary, it is

generally understood that supervisors cannot be liable for violating a constitutional right

absent their personal involvement in the wrongdoing. See Baraka v. McGreevey,

(3d Cir. 2007) (“A defendant in a civil rights action must have

personal involvement in the alleged wrongs to be liable, and [he or she] cannot be held

responsible for a constitutional violation which he or she neither participated in nor

approved.” (citations and internal quotation marks omitted)); Rode v. Dellarciprete,

4 To be clear, nothing about this ruling necessarily condones Detective Friedenberger’s decision to further prolong the stop; the basis for reversing is that without Detective Gregory’s personal involvement in the final 30 minutes of the detention, his conduct did not violate clearly established law.

11

, 1207 (3d Cir. 1988) (“A defendant in a civil rights case must have

personal involvement in the alleged wrongs; liability cannot be predicated solely on the

operation of respondeat superior.”).5 Accordingly, the District Court erred in denying

qualified immunity to Detective Gregory for the final approximately 30 minutes of the

detention.

* * *

For these reasons, we reverse in part and vacate and remand in part the District

Court’s denial of qualified immunity to Detective Gregory. He is entitled to qualified

immunity for the decision to detain Sirleaf and Summerville as well as for the first 30

minutes and final 30 minutes of the 90-minute detention. But for the middle 30 or so

minutes of the stop, we vacate and remand for factual findings regarding Detective

Gregory’s personal involvement in the delay.

5 See also Ziglar v. Abbasi,

(2017) (explaining that a Bivens claim – the federal analog to § 1983 suits against persons acting under color of state law – “is brought against the individual official for his or her own acts, not the acts of others”); Ashcroft v. Iqbal,

(2009) (explaining in the Bivens context that “[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct”).

12