USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 1 of 28

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1638

CURTIS LEVAR WELLS, JR.,

Plaintiff – Appellant,

v.

JAVIER FUENTES, Badge #1666; SCOTT WANEK, Badge #1137; MICHAEL P. ARMSTRONG, Badge #331; LAUREN LUGASI, Badge #1625; KIMBERLY SOULES, Badge #1630; AUSTIN KLINE, Badge #1720; JOHN VANAK, Badge #1399; KEITH SHEPHERD; JOHN DOES 1 through 10; UNITED STATES OF AMERICA,

Defendants – Appellees,

and

ASHLEY BARNICKLE, Badge #1574; COUNTY OF ARLINGTON,

Defendants.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Michael Stefan Nachmanoff, District Judge. (1:22-cv-00140-MSN-IDD)

Argued: September 26, 2024 Decided: January 22, 2025

Before THACKER, RICHARDSON, and BENJAMIN, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Thacker and Judge Benjamin joined. USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 2 of 28

ARGUED: Matthew Aulin Crist, MATTHEW A. CRIST PLLC, Manassas, Virginia, for Appellant. Yuri S. Fuchs, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Blaire Hawkins O’Brien, HARMAN CLAYTOR CORRIGAN WELLMAN, Richmond, Virginia, for Appellees. ON BRIEF: Robert E. Barnes, BARNES LAW LLP, Los Angeles, California, for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Federal Appellees. David P. Corrigan, Leslie A. Winneberger, HARMAN CLAYTOR CORRIGAN WELLMAN, Richmond, Virginia, for Appellees Javier Fuentes, Scott Wanek, Lauren Lugasi, Kimberly Soules, Austin Kline, and John Vanak.

2 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 3 of 28

RICHARDSON, Circuit Judge:

Curtis Wells parked somewhere he shouldn’t have. He stopped beside a road

running between Arlington Cemetery and the Pentagon, then gestured wildly while he took

a phone call. Police understandably checked on him. When they did, they realized Wells

had neither license nor registration and wrote him a ticket. Without a registration, Wells

couldn’t stay parked on the roadside. And without a license, he couldn’t drive home either.

So the police had to tow his car.

Wells’s parking ticket became a criminal case when officers found an assortment of

weapons and tactical gear in his car. Along with guns, face masks, and a grenade, officers

spotted a body armor plate carrier in the back seat. The police sent Wells home that day

and kept some of his gear for safekeeping. But further investigation suggested that the

plate may have been stolen from the Army. So, nine days later, police arrested Wells for

receiving stolen property.

Wells now challenges the officers’ actions. But the Fourth Amendment proscribes

only unreasonable police actions. And when officers enjoy qualified immunity, their

actions must not only be unreasonable, but patently so. Because everything Wells

describes passes that test, and because his other claims fall short, we affirm the dismissal

of all his claims.

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I. Background

A. Officer Armstrong Approaches Wells by Arlington Cemetery

Curtis Wells parked his Mustang outside Arlington Cemetery in February 2020. 1

There, he took a phone call and drank a strawberry-banana smoothie. Michael

Armstrong—a police officer assigned to the cemetery—noticed Wells’s gestures while he

was on the phone. 2 From Armstrong’s point of view, Wells was making “animated,”

“flamboyant motion[s],” and Armstrong worried that the “commotion” might mean

trouble. J.A. 89–90, 92. Perhaps “a medical emergency.” J.A. 91. Or perhaps “somebody

was just upset that their car had broken down.” J.A. 91. Either way, “[b]eing close to a

military installation,” he drove up to check on Wells. J.A. 91. When he reached Wells,

Armstrong parked behind the Mustang. And as he did, he noticed that Wells’s car bore an

1 Normally, on appeal of a Rule 12(b)(6) dismissal, we consider only the facts alleged in the complaint. But Wells asks us to consider exhibits that he attached to his complaint as well, including police footage, and testimony and documents from the records of criminal proceedings against him. Below and here, the defendants agree that this is appropriate. With the parties in agreement, we will treat Wells’s exhibits as adopted by the complaint. See Blankenship v. Manchin,

, 526 n.1 (4th Cir. 2006); see also Balogh v. Virginia,

, 131 (4th Cir. 2024); Occupy Columbia v. Haley,

(4th Cir. 2013); cf. Doriety for Est. of Crenshaw v. Sletten,

, 679–80 (4th Cir. 2024). 2 Arlington Cemetery lies between Fort Myer and the Pentagon. Military police like Armstrong patrol the cemetery and its surroundings under a joint agreement with Arlington County police. 4 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 5 of 28

expired temporary registration. So he summoned Arlington County police and chatted with

Wells while he waited for them to arrive.

B. Arlington Police Arrive, Detain Wells, and Search His Mustang

When the local law-enforcement officers turned up, one of them, Officer Javier

Fuentes, learned from Armstrong that Wells’s registration had expired. Fuentes also

discovered that Wells wasn’t carrying a driver’s license. And when he asked Wells

whether he had any guns in the car, Wells replied that he had an AR-15 in the trunk and a

Glock in the center console. Finally, glancing into the car, Fuentes saw a ballistic plate

carrier—a type of body armor—resting in plain view on the back seat. With that, Fuentes

cuffed Wells and sat him on the curb while he sorted out what to do. Other local officers

retrieved the weapons and ran their serial numbers.

By this point, the officers faced a complex problem. They already knew that Wells

had committed at least two offenses: driving without a license and driving with an expired

registration. See Va. Code §§ 46.2-104, 46.2-646. Without a license, Wells couldn’t

lawfully drive home. At the same time, his car couldn’t remain parked in a public lot with

an expired tag. See Arlington County, Va., Code § 14.2-2(A)(2) (2015).

Given all this, the local officers knew they needed to tow Wells’s Mustang.

Following Arlington County Police Department practice, the officers performed an

inventory search of the car before towing it. That search turned up a formidable arsenal:

five loaded AR-15 magazines, a drone, a laptop, rubber knives, face masks, radios, a Texas

license plate, a smoke grenade, two tactical vests, a list of weapons to be purchased, a

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“Stanley Fat Max 24-inch yellow crowbar,” and a Ceradyne ballistic plate bearing serial

number 2923205 inside the earlier-discovered plate carrier. J.A. 266–68.

This gear raised another problem. Normally, the police could have just sent Wells

home. Though he couldn’t drive, he could walk or call a cab, and he could ordinarily take

with him whichever of his possessions he wanted from his car. But the guns, grenade, and

plate carrier posed an issue. Arlington Cemetery is right next to the Pentagon, and the

officers understandably didn’t want to deck Wells out in weapons and tactical gear, then

send him walking past one of the nation’s most sensitive sites. 3 Instead, they recommended

that he phone a friend to pick him up. But Wells couldn’t find anyone to get him. So the

local police suggested that Wells leave his gear with them. “Okay,” he replied. J.A. II

01:06:10–01:06:30. Accordingly, the local police decided which items warranted separate

safekeeping and which could remain in the trunk, then explained the property retrieval

process to Wells. “Cool, cool,” he said. J.A. II 01:12:18. After Wells signed the property

retrieval form, the local police gave his Mustang to the tow company.

C. Arlington County Police Revisit Wells’s Property in Custody

The next day, Arlington County’s Detective Scott Wanek took another look at

Wells’s in-custody gear. The armor plate aroused Wanek’s interest because it bore an

Army serial number—and Wells, Wanek discovered, is a veteran of the Army’s Third

Infantry Regiment. Wells served with the Old Guard’s Echo Company until 2019, when

he received a General Under Honorable Conditions discharge. Seeing this, Wanek called

3 Nor, apparently, could Wells summon a ride—because Ubers don’t allow guns. 6 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 7 of 28

the military police and spoke to Detective Keith Shepherd. Shepherd told Wanek that Echo

Company reported several armor plates as stolen about a month before Wells was

discharged. So Wanek did some digging. He discovered that after Wells’s gear return, “he

was given a ‘statement of no charges,’ meaning that [he] had returned all issued

equipment.” J.A. 268. Yet somehow, a serialized Army plate turned up in the back of his

car. And as far as Shepherd knew, there was no legitimate way Wells could have left the

Army but kept the Army’s plate.

D. Arlington County Police Arrest Wells, and Virginia Brings Criminal Charges

Wanek thus sought a warrant to arrest Wells. Three days after Wanek got the

warrant, he called Wells and invited him to “pick up his gear” from the Arlington County

courthouse. J.A. 295. But this was a ruse. When Wells arrived at the courthouse, this time

driving a Pontiac, he was arrested. And when Wanek asked him about the plate, Wells

confessed that he had stolen it from his Army roommate during out-processing.

Meanwhile, Officer Ashley Barnickle impounded and requested a search warrant for the

Pontiac because local police suspected Wells had more plates and intended to sell them.

When the warrant arrived, Barnickle searched the Pontiac and found more tactical

equipment, along with various unknown substances: a rifle magazine loaded with 28

green-tipped rounds; lock picks; a hemorrhage bandage; gauze; “spikes/darts with case”; a

black bag containing various pills and white powder, and a notebook with Proverbs 3:5 on

the cover (“Trust in the Lord with all your heart, And do not lean on your own

understanding.”). J.A. 284.

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Later, in February 2020, Wells was convicted of the traffic offenses. In March, a

grand jury indicted him for receiving stolen property valued in excess of $500, a violation

of Va. Code § 18.2-108. Wells was denied bail because the state court considered him a

“flight risk and a danger to the community.” And in July, another grand jury indicted Wells

on drug charges. In September, Virginia declined to prosecute the stolen-property case.

Wells was then released from jail. And in April 2021, Virginia likewise declined to

prosecute the drug case.

E. Wells Sues

With the criminal cases over, Wells brought state and federal claims against many

state and federal officers, Arlington County, and the United States. He pleaded Fourth

Amendment claims under

against the state defendants for detaining him,

searching his car, and seizing his property on February 9; searching his property again once

it was in police custody; and lying to magistrates to secure the later arrest and search

warrants. He likewise pleaded a Second Amendment claim against the state defendants for

taking his guns. As for the federal defendants, he claimed Fourth and Fifth Amendment

violations under Bivens v. Six Unknown Named Agents,

(1971). Last, he

brought state tort claims against various individual officers for false imprisonment and

malicious prosecution, a Monell v. Dep’t Soc. Servs. claim against Arlington County, see

(1978), and a direct claim against the United States, citing the Federal Tort

Claims Act, see

et seq.

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1. The United States Steps In

Because Wells sued two federal officers for state torts, the United States stepped in

as a party, substituting itself for Armstrong and Shepherd under the Westfall Act,

(d)(1). Wells moved to strike the substitution, complaining (without evidence) that

Armstrong and Shepherd had acted ultra vires and were therefore ineligible for the Westfall

Act’s protections. The district court denied Wells’s motion. It reasoned that absent

evidence to counter the U.S. Attorney’s Westfall Act certification, that certification

presumptively proved that Armstrong and Shepherd acted within the scope of their

employment.

2. The District Court Dismisses Wells’s Claims

All defendants successfully moved to dismiss Wells’s claims. The district court

reasoned that qualified immunity protected the federal officers even if a Bivens remedy

were available. So too for the state defendants. And because Wells never alleged that

Arlington County’s policies caused the harms he complained of, the district court also

rejected Monell liability. Wells’s state tort claims against state officers likewise failed

because Wells didn’t allege all their elements. As for the United States, the district court

held that Armstrong and Shepherd performed discretionary functions, so Wells’s claim

against them was barred by sovereign immunity.

Wells now appeals. 4

4 We have jurisdiction to decide Wells’s appeal under

. And we review de novo the dismissal of his claims—whether they were dismissed on the merits, Evans v. United States,

, 616 (4th Cir. 2024), or for lack of jurisdiction, Doe (Continued) 9 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 10 of 28

II. Discussion

State and federal officials alike “are immune from suit . . . unless they have violated

a [federal] statutory or constitutional right that was clearly established at the time of the

challenged conduct.” City & Cnty. of S.F. v. Sheehan,

, 611 (2015) (quotation

omitted). Though qualified immunity is controversial, we are bound to apply it in full

measure. And it is demanding.

Qualified-immunity cases involve two steps. At step one, the plaintiff pleads a

§ 1983 or Bivens action by showing that an official’s conduct violated his right. 5 See

Stanton v. Elliott,

, 233 (4th Cir. 2022). At step two, qualified immunity allows

the official to beat the plaintiff’s claim by showing that the asserted right was less than

“clearly established” at the time of the conduct. Plumhoff v. Richard,

(2014). 6 What does it mean for the asserted right to be “clearly established?” It must be

v. Meron,

(4th Cir. 2019). To avoid dismissal, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). And to “nudg[e] the claims across the line from conceivable to plausible,” the facts alleged must surpass “the speculative level.” Evans, 105 F.4th at 616 (quoting Bazemore v. Best Buy,

, 200 (4th Cir. 2020)). 5 What this showing requires of the plaintiff depends on the stage of litigation. On a Rule 12(b)(6) motion, we ask whether the plaintiff has plausibly alleged all the elements his claim requires. At summary judgment, we ask whether there’s a real, trial-worthy dispute about some fact that the claim turns upon. Either way, what is required at step one is essentially a normal merits analysis indexed to the relevant stage of litigation. See Behrens v. Pelletier,

(1996). 6 Qualified immunity thus consists of two questions, on which the burden of proof is split in the Fourth Circuit. Has the plaintiff shown that his rights were violated, and has the officer shown that the asserted rights were less than clearly established? Thurston v. Frye,

, 673 (4th Cir. 2024). 10 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 11 of 28

the case that “any reasonable official in the defendant’s shoes would have understood that

he was violating it.” Id. at 779. Of course, the “reasonable official”—like the “reasonable

man” posited by some tort cases—is a fiction. Qualified immunity’s real bite lies in what

this hypothetical is supposed to measure: The law is not “clearly established,” or obvious

to “any reasonable official,” unless “existing precedent” has “placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

, 741 (2011).

It’s easier to show that a right was probably violated than inarguably violated, and

so “[t]here are cases in which it is plain that a constitutional right is not clearly established

but far from obvious whether in fact there is such a right.” Pearson v. Callahan,

(2009). Thus, to avoid “substantial expenditure of scarce judicial resources,” we

may take these two steps in either order—or, answering one in the negative, decline to

answer the other.

. If we choose to take the second, qualified-immunity inquiry

first, we assume that the plaintiff has shown all the facts alleged. In other words, we

assume that the plaintiff can carry his burden at step one. See Stanton, 25 F.4th at 233 &

n.5. Then we ask whether if what he says were true, this would amount to an inarguable

breach of law.

Because at step two the question must be beyond debate from the perspective of any

reasonable officer, we often say that qualified immunity calls for an “objective” test. See

Harlow v. Fitzgerald,

, 815–17 (1982). The Supreme Court has explained

“that bare allegations of malice should not suffice to subject” officers to the “burdens” of

suit.

at 817–18. This means we do not ask at step two whether the defendant officials

subjectively knew they broke the law, or even did so deliberately.

at 818–19. Instead,

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we assume that the plaintiff can win at step one and then ask only whether what the officer

allegedly did was undebatably wrong. 7

Yet because the precise scope of “clearly established law” depends on “existing

precedent,” the factual details of past cases matter a great deal. al-Kidd, 563 U.S. at 741–

42. The Supreme Court has “repeatedly” admonished that we should not “define clearly

established law at a high level of generality.” Id. at 742. Instead, to find a violation of

clearly established law, we must be able to “‘identify a case’ or a ‘body of relevant case

law’ where ‘an officer acting under similar circumstances was held to have violated the

Constitution.’” Rambert v. City of Greenville,

, 402 (4th Cir. 2024) (cleaned

up) (quoting D.C. v. Wesby,

, 64 (2018)). If no prior case has announced a

“rule” that “obviously resolve[s]” the rights claim at hand, then the right was not clearly

established. Wesby, 583 U.S. at 64. 8

7 Some of our cases rightly observe that despite this rule, defendant officers’ motivations really can matter at step one. In First Amendment retaliation cases, for example, or in Eighth Amendment deliberate-indifference cases, it’s clearly established that whether an officer broke the law depends on his private, subjective motives—which means we can’t answer the step-one question without knowing something about those real motives. See Crawford-El v. Britton,

, 588–89 (1998); Thompson v. Virginia,

(4th Cir. 2017). So although it’s true that we never consider officers’ true intentions at step two, we do still consider officials’ subjective motivations at step one if those motivations are elements of a plaintiff’s claim. But if we take step two first, we don’t need to know—and therefore don’t ask—whether the officers acted with malice. We assume that the plaintiff has made out his claim, including any element of subjective malice, and then ask whether it is clear beyond debate that the conduct pleaded broke the law. 8 That “specificity is especially important” in Fourth Amendment cases, where it is “difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Mullenix v. Luna,

, 12 (2015) (internal (Continued) 12 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 13 of 28

This objective, fact-bound standard is “demanding.” Id. at 63. The “crucial

question” is whether every reasonable officer would know this action in this situation was

unlawful. Plumhoff,

. If even one reasonable officer could think that

“existing precedent” did not put the legality of the conduct at issue “beyond debate,” then

all officers are immune. al-Kidd, 563 U.S. at 741.

A. Wells’s Fourth Amendment Claims Fail

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV. Wells alleges search and seizure alike. But the officers’ alleged conduct

did not run afoul of clearly established law. So qualified immunity shields the officers.

The Fourth Amendment, fundamentally, demands reasonable conduct. See, e.g.,

Brigham City v. Stuart,

(2006) (“[T]he ultimate touchstone of the Fourth

Amendment is ‘reasonableness.’”). In explaining what is reasonable and what is not, the

Supreme Court has identified certain types of conduct that often clear the reasonableness

hurdle. The typical reasonable search or seizure happens within the boundaries of a valid

warrant. See Maryland v. Garrison,

(1987). But without a warrant,

searches and seizures may still be reasonable. For instance, warrantless searches are often

reasonable when they accompany an arrest. See, e.g., Riley v. California,

,

quotation marks omitted). The Supreme Court often reiterates this proposition. See, e.g., Wesby, 583 U.S. at 64 (“[W]e have stressed the need to ‘identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.’” (quoting White v. Pauly,

, 79 (2017))). For this reason, cases like this one are not “‘the rare obvious case,’ where a general standard can clearly establish the answer.” Garrett v. Clarke,

, 589 (4th Cir. 2023) (quoting Wesby, 583 U.S. at 64). 13 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 14 of 28

382 (2014). So too under exigent circumstances, when “there is compelling need for

official action and no time to secure a warrant.” Mitchell v. Wisconsin,

, 849

(2019).

Yet these categories are more heuristics than hard-edged rules. They have

inherently fuzzy boundaries because classifying conduct requires circumstance-specific

analysis. See, e.g., United States v. Banks,

(2003) (explaining that the

Court has “largely avoid[ed] categories and protocols for searches” because “it is too hard

to invent categories without giving short shrift to details that turn out to be important in a

given instance”). And these guidelines don’t exhaust the universe of reasonable actions.

The categories can help, but “reasonableness [is] a function of the facts of cases,” and

seldom does one fact have “dispositive[] significance.”

For this reason, we must decide

in every individual case whether officers acted reasonably.

“[A]most without exception,” whether police action satisfies this reasonableness

command turns on “an objective assessment of an officer’s actions in light of the facts and

circumstances then known to him.” Scott v. United States,

(1978). We

thus generally do not consider officers’ subjective intentions. Brigham City,

; Whren v. United States,

, 813–14 (1996). Instead, we consider only what

an imaginary, reasonable officer could have done in the same situation with the same

knowledge. And whether a particular action falls within the reasonableness window or

without depends on whether “the circumstances, viewed objectively, justify the action.”

Brigham City,

(cleaned up).

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As laid out above, in qualified-immunity cases, we layer a second objective inquiry

atop the first. At the first layer (the Fourth Amendment one), we ask whether a reasonable

officer could have done the challenged act—that is, whether his conduct was factually

reasonable. This determines whether officers violated a constitutional right. And at the

second layer (the qualified-immunity one), we ask whether the conduct was “legally

[]reasonable”—that is, whether any officer could have thought the act factually reasonable

and thus lawful under the Fourth Amendment. Anderson v. Creighton,

(1987) (emphasis added). This determines whether the asserted right was clearly

established. All together, step-two asks in Fourth Amendment cases whether every

reasonable officer would know that the challenged conduct was un-reasonable. 9

1. Officers Lawfully Approached Wells

First, Wells claims that Armstrong seized him simply by pulling up behind him and

blocking him in. An officer merely approaching a person does not implicate the Fourth

Amendment. Police can always talk to people in public—just as “any private citizen might

do without fear of liability.” Caniglia v. Strom,

, 198 (2021) (internal

quotation marks omitted) (quoting Florida v. Jardines,

(2013)). The Fourth

9 As explained, qualified immunity does not foreclose inquiry into officers’ subjective motivations when those motivations form an element of the plaintiff’s claim. But Fourth Amendment claims do not invite this subjective analysis. See Hunsberger v. Wood,

(4th Cir. 2009). In a few limited contexts, like inventory searches, we may examine “programmatic” purposes—that is, the reasons for the general policy for inventory searches.

But that is not the same as considering individual officers’ subjective motives. When it comes to individual officers, we consider only whether their conduct was objectively reasonable, not what went through their minds as they did it. 15 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 16 of 28

Amendment is implicated only if police do more, like prevent someone from leaving. See

United States v. Mendenhall,

(1980). We assume without deciding that

Armstrong did more and thereby seized Wells. Given this, our question is whether Wells

had a clearly established right against seizure in this situation.

Armstrong asserts that a reasonable officer could think pulling up behind Wells was

lawful under a doctrine sometimes called the “community-caretaking exception.” This

doctrine emerged, almost by accident, out of passing comments in two decades-old

Supreme Court opinions. See Thomas K. Clancy, The Fourth Amendment: Its History and

Interpretation § 10.3 (2017). In the first, Cady v. Dombrowski, the Court observed that

police are not just crime-fighters.

(1973). They also regularly “engage in

what, for want of a better term, may be described as community-caretaking functions,

totally divorced from the detection, investigation, or acquisition of evidence relating to the

violation of a criminal statute.”

. In Cady, the Court used that principle to explain

a search that began as an effort to check a driver’s welfare but wound up uncovering

evidence. Then, in South Dakota v. Opperman, the Court applied the principle to towing

disabled or illegally parked vehicles: “The authority of police to seize and remove from

the streets vehicles impeding traffic or threatening public safety and convenience is beyond

challenge.”

(1976). From there, the principle assumed a life of its own.

And today, the principle has become a doctrine, “broadly utilized” by federal and state

courts alike to cover the vast range of situations in which police engage in activity unrelated

to law enforcement yet uncover evidence of crime. Clancy, supra, § 10.3; see also

16 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 17 of 28

Pennsylvania v. Livingstone,

, 625–27 (Pa. 2017) (thoughtfully detailing the

range of state-court treatment of the community-caretaking exception).

Perhaps because the doctrine is so capacious, its boundaries remain hazy, for “many

police tasks . . . go beyond criminal law enforcement.” Caniglia, 593 U.S. at 200 (Alito,

J., concurring). Even when limited to the highway, noncriminal police action can take

many forms depending on “the recurring practical situations that result[] from the operation

of motor vehicles . . . with which local police officers must deal every day.” Cady,

. But the idea that police may respond to car accidents without risking civil

liability does not hand them a blank check in all other situations. For instance, the Court

recently clarified that the community-caretaking exception is not “a standalone doctrine

that justifies warrantless searches and seizures in the home.” Caniglia, 593 U.S. at 196

(emphasis added). Helpful as this guidance is, the doctrine’s limits elsewhere remain

unsettled.

We need not decide the exception’s precise bounds—or even decide whether it

definitively applies here—to conclude that Armstrong violated no clearly established right.

Though the exception is fuzzy around the edges, its core claim is that police can reasonably

“provid[e] aid to motorists.” Caniglia, 593 U.S. at 199. And they can reasonably help

someone in need more generally. Armstrong saw a car parked outside the cemetery, and

he did “not know[]” “if it was a medical emergency,” or the “car had broken down,” or its

17 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 18 of 28

occupant was “upset in some way.” J.A. 91. 10 A reasonable officer in such circumstances

may well have thought caretaking justified. See Brigham City,

. At the

very least, we cannot “identify a case” that has held the caretaker exception inapplicable to

an analogous situation, so we cannot say that the constitutional question is “beyond

debate.” Wesby, 583 U.S. at 64 (quotations omitted). Nor will we speculate whether

Armstrong secretly harbored other, more nefarious motives. Under our precedents, an

officer’s private beliefs make no constitutional difference in this context. See Hunsberger,

. Wells recognizes that the caretaking exception has nebulous borders. But

10 Though this appeal comes to us on a motion to dismiss, the parties and district court relied on Armstrong’s testimony below. Wells quoted long excerpts from it in his complaint. The federal defendants attached a longer portion as an exhibit to their motion to dismiss. And the district court’s discussion of the caretaking issue depended on those submissions. Now, Wells backpedals—insisting that we should defer to the language in his complaint over the testimony he pasted into it. But although “it is not always appropriate to conclude that the plaintiff has adopted” whatever is in his complaint, Goines v. Valley Cmty. Servs. Bd.,

(4th Cir. 2016), it is too late for Wells to make this argument now. Wells’s reliance on the testimony below created a “presumption” that he “adopted [it] as true.”

. Any objection to this was forfeited by his failure to make it below. The argument is forfeited here too, notwithstanding Wells’s misgivings, because he does not argue that we shouldn’t consider Armstrong’s testimony for its truthfulness. See Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017) (explaining that a party cannot preserve an argument on appeal just by “tak[ing] a passing shot at the issue” (quotation omitted)). And given that the testimony was incorporated into Wells’s complaint, its content trumps Wells’s denials. Even on a motion to dismiss, “in the event of a conflict between the bare allegations in the complaint and any exhibit attached, the exhibit prevails.” Goines,

(cleaned up). So Armstrong’s testimony about what he saw overcomes Wells’s bare denial. 18 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 19 of 28

that means Wells cannot claim a clearly established right—ambiguity is a shield, for better

or for worse. 11

2. Then, Officers Lawfully Inventoried Wells’s Mustang

After Officer Armstrong told the local police that Wells carried an expired tag, they

could remove Wells from the car to investigate. See Pennsylvania v. Mimms,

(1977). And as Wells concedes, they could detain him and remove the guns from

his car while they did so.

Wells argues that even though police could lawfully do all that, they couldn’t

constitutionally search the rest of his car just because they meant to tow it. But here too,

the officers take shelter within a Fourth Amendment exception. They reply that they

weren’t “rummaging” for “incriminating evidence” but conducting a routine administrative

inventory search. Florida v. Wells,

(1990). We agree. It’s reasonable for a

police department to require an inventory before towing a car. This protects police and

civilians alike from dangerous items and lost property. See United States v. Banks,

(4th Cir. 2007).

Of course, an inventory search must be conducted in good faith.

Under our

precedents, this means two things. First, the policy or practice authorizing the search must

not have an impermissible “programmatic purpose.” Hunsberger,

; see

11 Wells also objects that police continued Armstrong’s unlawful seizure when they arrived. But this fails for the same reason as his first claim. When local police arrived, they could rely on Armstrong’s seizure (if it was a seizure). We do not have a clearly established anti-piggybacking rule. See United States v. Hensley,

, 231–32 (1985). 19 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 20 of 28

also Wells,

(“The policy or practice governing inventory searches should be

designed to produce an inventory.”). Second, officers’ searches must “generally” accord

with such “standard procedures.” Banks, 482 F.3d at 739–40; Colorado v. Bertine,

(1987) (“[R]easonable police regulations relating to inventory procedures

administered in good faith satisfy the Fourth Amendment.”). 12 Searches that satisfy these

two requirements clear the First Amendment’s reasonableness hurdle.

The local officers’ search did. Wells had valuable gear in the car, equipment that

could have been the basis for costly claims if the police lost or damaged it. See Bertine,

479 U.S. at 372–73. The gear was dangerous too. See

And so the officers explained

that they followed department policy, which instructed them to inventory vehicles before

having them towed. By following the policy’s mandates, the police searched “according

to standardized criteria.”

at 374 n.6. And Wells alleges nothing to the contrary. 13

Wells’s responses are unconvincing. First, he claims that an inventory search could

withstand the Fourth Amendment only if officers removed everything from the car. But

we have never required that. See, e.g., Bertine,

(upholding an inventory

12 With respect to individual officers, this good-faith requirement is thus an objective one. Cf. United States v. Leon,

, 919–20 & n.20 (1984) (explaining the similar, “objective good faith” exception to the exclusionary rule). 13 Wells makes no headway by arguing that the local police should have given him an impound form earlier than they did—or that officers otherwise breached policy in some unspecified way. As we have explained, inventory searches should generally follow department policy. But not every “t” need be crossed. See Banks, 482 F.3d at 739–40 (upholding an inventory search despite six discrepancies, including an improper inventory form, between the policy and the officer’s actions). Wells fails to allege any substantial departure from policy and thus cannot show bad faith. 20 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 21 of 28

search that was “performed in a ‘somewhat slipshod manner’”). And for good reason: The

point of inventory searches is identifying dangerous or valuable property. See United

States v. Horsley,

, 215–16 (4th Cir. 2024). Combing through every tiny

compartment and seizing every item would go far further than required to achieve that end

and would intrude on motorists’ privacy more than necessary.

Wells next objects that police should not have opened containers within his car. But

this too is mistaken. “[A]n inventory-search policy may leave the inspecting officer

‘sufficient latitude to determine whether a particular container should or should not be

opened in light of the nature of the search and characteristics of the container itself.’”

Banks,

(quotation omitted). And Wells does not even try to explain which

containers he thinks were wrongly opened or why the circumstances didn’t justify opening

them.

Last, Wells insists that the local police jumped the gun by beginning the search

before they knew his car needed to be towed. As he tells the story, police only realized

they needed to tow his car once they discovered valuables inside—items that couldn’t be

left on the side of the road and that Wells couldn’t take with him. But the decision about

what to do with Wells’s property and the decision to tow his car are logically independent.

A car with an expired registration cannot lawfully occupy a public thoroughfare in

Arlington. Arlington County, Va., Code § 14.2-2(A)(2) (2015). So, because Wells could

not legally drive the car away, the officers had to tow the car upon learning that Wells’s

registration was expired. Wells may be right that local police couldn’t know which of his

things they would take for safekeeping until he confirmed that no one would pick him up.

21 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 22 of 28

But they did know, long before Wells gave up trying to phone a friend, that his Mustang

needed to be towed. And that triggered a constitutional inventory search. 14

3. With Wells’s Consent, Local Police Lawfully Safekept Wells’s Property

Wells also argues that the local police unlawfully took his property for safekeeping.

Many of his claims turn on this assertion, but they all fail because it is false: Wells

consented to the safekeeping. When officers realized that Wells had weapons, tactical gear,

and other valuable items in the car, they explained that he could not leave them by the

roadside. And though they did not forbid him to walk home with his kit, they did advise

him that it would be unwise to strap on a plate carrier and then stroll past the Pentagon with

a rifle slung from his shoulder. Wells prudently took that advice.

Wells now backtracks and claims that although he signed the police property

retrieval form, he did not really consent. The video of his interaction with the police belies

this bare assertion. He accepted, on video, that leaving his things with the police was his

best option. Though he—and the police—might have preferred to find someone to take

him home, it was Wells who voluntarily abandoned that endeavor. When he did, Wells

agreed to leave his things without protest. The video is clear that Wells cheerfully accepted

the officers’ offer. His claims of coercion therefore fail. 15

14 Wells’s claim that officers detained him for too long also fails. Police could lawfully detain Wells long enough to perform this search. See Muehler v. Mena,

(2005). 15 Wells replies, citing Miranda v. Arizona,

(1966), that consent must be clearer than this. How clear, he does not say. But his reliance on Miranda is misplaced. (Continued) 22 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 23 of 28

For this reason, the district court rightly dismissed Wells’s consent-to-safekeeping

arguments. At the motion-to-dismiss stage, “in the event of a conflict between the bare

allegations in the complaint and any exhibit attached, the exhibit prevails.” Goines,

(cleaned up). We have applied the attached-exhibit rule to videos as well as

documents. Doriety, 109 F.4th at 679. So if a plaintiff bases his complaint on a video, yet

the video “‘blatantly contradicts’ [his] allegations,” then we will dismiss those allegations

as “implausible.” Id. at 680 (citation omitted).

4. Later, Officers Lawfully Revisited Wells’s Property

Wells next alleges that Detective Wanek unreasonably searched his gear the day

after police took it for safekeeping. And because this second look prompted Wanek to

investigate whether Wells had stolen the Army’s ballistic plate, he complains that this

tainted his later prosecution for the theft. But this just repackages Wells’s other arguments.

As Wells concedes, “evidence otherwise taken lawfully, can be later reviewed without

Fourth Amendment violation.” Opening Br. 38. So the only claim he makes on appeal is

that police wrongly seized his property to begin with and that this wrongful seizure infected

Miranda does not demand clear consent to questioning. The Miranda cases teach nearly the opposite: A suspect must speak “unambiguously” to invoke the rights to remain silent and to counsel. Berghuis v. Thompkins,

, 381 (2010). And in any event, we have held that a consent to search does not require magic words—or, for that matter, any words at all. See United States v. Wilson,

(4th Cir. 1990) (finding consent in a “shrug[]”). So Wells’s repeated statements here suffice. 23 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 24 of 28

everything that happened later. Yet as explained, there was no wrongful seizure; Wells

voluntarily put the property in police custody. So this claim also fails. 16

B. Wells’s Second Amendment Claims Fail

Alongside his Fourth Amendment claims, Wells also alleges that officers violated

his Second Amendment rights by taking his guns. But this claim runs into the same

qualified-immunity problem. It may—may—be true that the officers’ acts might violate

the Second Amendment if they repeated them today. But qualified immunity demands we

look at the law’s content “at the time of the conduct in question.” Mays, 992 F.3d at 301.

16 Atop the claims already discussed, Wells argues that officers violated his rights by lying to a magistrate. Wanek, he says, lied about the ballistic plate—what it was worth and whether he had reason to think it stolen—to get an arrest warrant. In his view, this constitutes both a Fourth and a Fifth Amendment violation. But given what we have explained, there was no lie. After Wanek’s investigation, local police had probable cause to believe Wells stole the plate. Shepherd told Wanek that there was no legitimate way Wells could have left the Army but kept its equipment. Rather than refute this, Wells appears to suggest that police can only seek a warrant if they not only suspect a crime but also know precisely how the crime was committed. But we have never required that. We have instead repeatedly stated that an arrest warrant may be issued so long as “facts and circumstances within the officer’s knowledge” are sufficient for a person of “reasonable caution” to think that “the suspect has committed . . . an offense.” Humbert v. Mayor and City Council of Baltimore City,

(4th Cir. 2017) (quoting Cahaly v. Larosa,

(4th Cir. 2015)). Wells also quibbles that the police had reason to doubt the plate was worth enough to support a felony charge. But this too gets him nowhere. Even if the plate wasn’t worth much, its theft still would have been a misdemeanor. Va. Code § 18.2-96. Receiving it if it was stolen would have been a misdemeanor too. Va. Code § 18.2-108. And with probable cause to think Wells committed a misdemeanor, officers could seek a warrant for his arrest. See Thurston, 99 F.4th at 674 n.4 (“Probable cause need not be tailored to the offense the arresting official suspected at the time of arrest.”). Wells additionally claims that after his arrest, local police again moved too soon by searching the car he arrived in before getting a warrant. But he provides no support for this bare allegation. Even on a motion to dismiss, we will not credit pure speculation. See, e.g., Evans, 105 F.4th at 616. 24 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 25 of 28

In 2020, existing precedent had not established that the Second Amendment protects a right

to public carry. See Kolbe v. Hogan,

, 135–37 (4th Cir. 2017) (en banc). That

recognition came from the Supreme Court years later. See New York State Rifle & Pistol

Ass’n v. Bruen,

, 8 (2022). Because Wells did not have a clearly established

right in 2020, the police are entitled to qualified immunity.

* * *

Without alleging injury from the violation of a clearly established right, Wells has

no federal claim against any of the individual officers. 17 Nor does he have a claim against

Arlington County. Even supposing Wells pleaded injury to a constitutional right, he does

not explain how any County policy, omission, or practice caused the harm. So no liability

can attach to the County. See Lytle v. Doyle,

(4th Cir. 2003). 18

17 For the federal officers, we have another reason to pause before allowing Wells’s claim to proceed. Litigants alleging constitutional violations have a ready avenue to sue state officers for damages. That is the principal function of § 1983. But as to federal officers, plaintiffs have fewer options. No statute opens the door to § 1983-style damages actions against federal officers. And though the Supreme Court has cracked that door in a handful of situations, see Bivens,

; Davis v. Passman,

(1979); Carlson v. Green,

(1980), it has instructed inferior courts to reject opening the door further if we spot “even a single reason to pause.” Egbert v. Boule,

, 492 (2022) (internal quotation marks omitted). But we need not decide whether to extend the “disfavored” Bivens action, Ziglar v. Abbasi,

, 135 (2017) (citation omitted), to Wells’s claims. Because the federal officers are immune, we may affirm without reaching the Bivens question. See Wood v. Moss,

(2014). 18 Rather than plausibly allege that County policy caused what happened to him, Wells instead postulates two patterns that—even if true—have little to do with his case. First, he says, Arlington County has a “historical practice of harassing law-abiding gun owners.” J.A. 61. But he does not explain how this “historical practice” affected the police’s decision to cite him for a traffic offense before they discovered his guns and later safekeep the guns with his permission. Second, he insists, Arlington County officers (Continued) 25 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 26 of 28

C. Wells’s State Claims Likewise Fail

Besides his federal claims, Wells also argues that the officers’s conduct violated

rights against search and seizure that are conferred by Virginia law. He is mistaken.

Virginia courts treat the state law he invokes as coterminous with federal constitutional

protections. Cromartie v. Billings,

, 254 (Va. 2020). So these claims fare

no better than their federal counterparts. 19

Wells also presses state tort claims for false imprisonment and malicious

prosecution against individual police officers. But these claims fail too. False

imprisonment requires, among other things, an unlawful arrest. But Wells doesn’t dispute

that he was arrested on a warrant. And though he urges that the warrant relied on faulty

premises, that is not enough to show an unlawful arrest in Virginia. So long as the warrant

was “regular and valid,” false imprisonment does not lie absent some other issue with the

detention. Lewis v. Kei,

(Va. 2011) (quotation omitted).

disproportionately “arrest[] armed persons of color.” J.A. 62. This fares no better. The local police didn’t arrest Wells when he was armed on February 9. And when they did arrest him eight days later, it wasn’t because he carried guns; it was because they thought he stole military equipment. 19 To be sure, Virginia unlawful-search rules don’t use the federal qualified- immunity standard. But Virginia law gets to the same outcome by a different path. Virginia state law accounts for sovereign immunity, which protects officers from liability unless they lack “even scant care” or else act “in conscious disregard of another’s rights, or with reckless indifference to the consequences.” Cromartie, 837 S.E.2d at 254. In other words, a merely negligent officer faces no liability under Virginia’s unlawful-search rule. Id. And Virginia courts distinguish negligence from recklessness by a familiar standard: They ask whether a “search was performed contrary to well-established law.” Id. at 255. For that, in turn, Virginia courts look to federal precedent. See id. So without a clearly established Fourth Amendment violation, Wells has no state-law claim either. 26 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 27 of 28

Malicious prosecution likewise requires more elements than Wells alleges. For one

thing, it requires the government to prosecute without probable cause. Dill v. Kroger,

, 378 (Va. 2021). Wells says Virginia lacked probable cause to prosecute him

for the stolen plate because police knew the plate was worth less than $500. But though

the punishment is harsher if the stolen property is worth more than $500, stealing

something worth less than $500 is still a crime in Virginia. Va. Code § 18.2-95, -96. And

though Wells alleges that both prosecutions were baseless, his concessions upend that

argument. Wells doesn’t dispute that drugs were in his Pontiac or that an Army plate was

in his Mustang. So this tort claim fails too. 20

20 Wells pursues the same state tort theories against Armstrong and Shepherd. For those claims, the United States stepped in to defend on Armstrong and Shepherd’s behalf. See

(c), -(d)(1). But the United States has sovereign immunity. And though it has waived parts of that immunity, it hasn’t waived with respect to federal employees’ discretionary functions.

§ 2680(a). If that sovereign immunity applies, district courts lack jurisdiction to consider the merits. Fed. Deposit Ins. v. Meyer,

(1994) (“Sovereign immunity is jurisdictional in nature.”); Steel Co. v. Citizens for a Better Env’t,

, 101–02 (1998) (explaining that a court “act[s] ultra vires” if it considers the merits when “jurisdiction is in doubt”). And here, whether immunity applied turned on the scope of the discretionary-function exception. Concluding that the officers performed discretionary functions, the district court dismissed Wells’s claim on Rule 12(b)(1), not 12(b)(6). Yet we need not decide whether Armstrong and Shepherd carried out discretionary functions. The district court lacked jurisdiction for the second reason that, even if we accept Wells’s allegations as true, neither Armstrong nor Shepherd committed any state torts. For “in the unique context of the FTCA, all elements of a meritorious claim are also jurisdictional.” Brownback v. King,

, 217 (2021) (citation omitted). Put differently, “a plaintiff must plausibly allege all six FTCA elements not only to state a claim upon which relief can be granted but also for a court to have subject-matter jurisdiction over the claim.”

at 217–18. This, in turn, “means a plaintiff must plausibly allege that ‘the United States, if a private person, would be liable . . .’ under state law.”

(quoting

(b)(1)). Wells does not. As explained, he does not plausibly allege that anyone committed any state torts. He thus “fails to plausibly allege an element (Continued) 27 USCA4 Appeal: 23-1638 Doc: 77 Filed: 01/22/2025 Pg: 28 of 28

* * *

Few parking tickets become federal cases. This one was unlucky for Wells because

of the arsenal he carried in his car. But with the car where it was, police had to tow it.

Needing to tow it, they had to inventory it too. And wisely or not, Wells chose to leave its

contents with the police. Though what ensued proved inconvenient for Wells, it was not

unconstitutional. So the dismissal of all his claims is

AFFIRMED.

that is both a merit element of [his] claim and a jurisdictional element.”

at 218 n.8. So the district court could “dismiss the claim under Rule 12(b)(1) or Rule 12(b)(6). Or both.”

28