Introduction

In International Security LLC v. Dana Berry, the United States Court of Appeals for the Third Circuit (not precedential) reversed the District Court’s implicit denial of qualified immunity to two Delaware officials who issued an emergency, temporary suspension of a private security company’s license without a pre-deprivation hearing. Writing for a unanimous panel, Judge Krause held that, in light of the undisputed record developed in discovery, the constitutional right asserted by the plaintiff—an asserted right to a pre-deprivation hearing before an emergency license suspension—was not clearly established when the officials acted.

The decision does not decide whether a constitutional violation occurred; instead, it refines the “clearly established” inquiry under qualified immunity in the emergency licensing context, emphasizing the necessity of contextual specificity and the importance of discovery in shaping the right at issue. It also clarifies how earlier appellate guidance at the motion-to-dismiss stage (Berry I) may yield a different qualified immunity outcome after factual development at summary judgment.

Case Background and Key Issues

The dispute stems from the Delaware State Police’s Professional Licensing Section (PLS) emergency suspension of International Security, LLC’s state license to provide private security services. On March 5, 2020, following a tip from a former employee, Dana M. Berry (a PLS supervisor) and S. Benjamin Parsons (PLS Director) investigated and verified that International Security was using unlicensed and unreported guards at client sites, including guards who were ineligible for licensure because of criminal records.

Acting under 24 Del. C. § 1308(a), which authorizes emergency suspensions “without a pre-deprivation hearing” when immediate action is needed to protect public health and safety, Parsons issued an emergency suspension letter instructing the company to cease operations and advising of the right to a post-deprivation hearing before the Delaware Board of Examiners if timely requested. The company requested a hearing a week later, but the matter settled before any hearing took place. International Security alleged business losses and sued the officials, asserting a procedural due process violation for the absence of a pre-deprivation hearing.

Earlier, in Berry I (2023), the Third Circuit vacated a dismissal and held that qualified immunity could not be granted at the pleading stage based on the complaint’s allegations, which suggested the suspension was based solely on a tip and that Berry’s investigation occurred only after suspension. Post-discovery, however, those allegations were contradicted, revealing a contemporaneous investigation and on-site verification of violations before the suspension issued.

The core question on appeal: Was the right to a pre-deprivation hearing “clearly established” in March 2020 for an emergency license suspension based on verified public-safety-related licensing violations?

Summary of the Opinion

The Third Circuit “began and ended” with the second prong of qualified immunity—whether the right was clearly established—without deciding whether there was a constitutional violation. Applying Supreme Court and circuit precedent demanding a “high degree of specificity” in defining rights for qualified immunity, the court narrowed the right at issue to the circumstances officials actually confronted: a temporary suspension of a private security agency’s license, pending a post-deprivation hearing, after the officials had verified multiple licensing and reporting violations implicating public safety.

International Security argued that Elsmere Park Club, L.P. v. Town of Elsmere (3d Cir. 2008) clearly established a right to a pre-deprivation hearing absent a genuine emergency. The panel disagreed: Elsmere supports deference to emergency actions backed by competent evidence and requires only post-deprivation process unless the emergency invocation is arbitrary or an abuse of discretion. Given the verified violations and public-safety concerns here, the court found no case—let alone a robust consensus—clearly prohibiting what the officials did. Qualified immunity therefore applied.

The court reversed the District Court’s order reserving judgment on qualified immunity and held that Berry and Parsons are entitled to qualified immunity on International Security’s procedural due process claim.

Factual and Procedural Posture in Detail

• March 5, 2020: Berry receives a tip that International Security is using unlicensed guards and not reporting all client locations as required.
• Berry reviews the PLS file, discovering prior violations in 2013, 2016, and 2018 (she joined PLS management in 2018 and was unaware of the history until prompted by the tip).
• Berry calls Alfred Izquierdo (company president) to confirm compliance; he requests questions in writing and indicates he will consult counsel.
• Berry conducts same-day site visits:
  • At Social Finance, Inc. (SoFi), Claymont: confirms the on-duty and relief guards are unlicensed and not on the required personnel roster.
  • At Luther Towers, Wilmington: confirms an unlicensed guard who is ineligible for licensure due to criminal record; the site itself was unreported to PLS.
• Berry recommends an emergency suspension; Parsons issues a letter directing International Security to cease services pending reinstatement and advising of the right to a Board hearing if timely requested, pursuant to 24 Del. C. § 1308(a).
• International Security timely requests a hearing; the parties settle before a hearing is set. The company alleges contract losses due to the suspension.
• Litigation ensues. At the pleading stage (Berry I), the Third Circuit vacates dismissal and rejects qualified immunity based on alleged facts. After discovery, the record contradicts key allegations (e.g., that suspension came before any investigation), leading to this appeal.

Analysis

Precedents Cited and Their Role

• Harlow v. Fitzgerald, 457 U.S. 800 (1982); Pearson v. Callahan, 555 U.S. 223 (2009): Establish the qualified immunity framework: officials are shielded unless they violate clearly established rights. Pearson allows courts to address either prong first.
• Santini v. Fuentes, 795 F.3d 410 (3d Cir. 2015): Confirms the two-prong qualified immunity test at summary judgment in the Third Circuit.
• District of Columbia v. Wesby, 583 U.S. 48 (2018): Emphasizes defining the right at a “high degree of specificity” tailored to the facts officials confronted; every reasonable officer must have “fair warning” of unlawfulness.
• Anderson v. Creighton, 483 U.S. 635 (1987): Cautions against defining rights at too “high a level of generality,” which fails to give fair notice to officials.
• Mack v. Yost, 63 F.4th 211 (3d Cir. 2023): Reinforces that rights must be framed in light of the “specific context” and that a robust, context-matched consensus is needed to defeat qualified immunity.
• Stringer v. County of Bucks, 141 F.4th 76 (3d Cir. 2025): Explains that analogous Supreme Court or appellate precedent must give officials fair warning, and that qualified immunity is often a poor fit at the pleading stage because factual context is underdeveloped.
• Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412 (3d Cir. 2008): Key foundation for emergency actions: where competent evidence allows an official reasonably to believe an emergency exists, the discretionary invocation of emergency procedures violates due process only if arbitrary or an abuse of discretion; post-deprivation process can be sufficient.
• Oliver v. Roquet, 858 F.3d 180 (3d Cir. 2017); Ziccardi v. City of Philadelphia, 288 F.3d 57 (3d Cir. 2002); Williams v. City of York, 967 F.3d 252 (3d Cir. 2020): Collateral order doctrine and scope of interlocutory appellate jurisdiction to review qualified immunity denials; the court can assess whether the facts, taken in the light most favorable to the plaintiff, amount to a violation of clearly established law.
• Eddy v. V.I. Water & Power Auth., 256 F.3d 204 (3d Cir. 2001): Confirms plenary standard of review for qualified immunity determinations.

Legal Reasoning

The court resolved the appeal at the second qualified immunity prong: whether the allegedly violated right was “clearly established” in March 2020. Several interlocking aspects of the reasoning are pivotal:

1. Specificity of the Right, Anchored in the Developed Record: After discovery, two complaint allegations that drove the earlier Berry I analysis proved inaccurate: (a) the suspension was not based solely on a tip; and (b) Berry had in fact conducted an on-site investigation before the suspension. With these undisputed facts, the court redefined the right not as a general right to pre-deprivation process, but as the right to a pre-deprivation hearing before a temporary, emergency suspension of a private security license when officials have contemporaneously verified multiple licensing and reporting violations implicating public safety.
2. Application of Wesby and Anderson—Avoiding High-Level Generalities: The court stressed that officials must have fair notice that their specific conduct is unlawful. General statements about due process or emergency powers do not suffice. By narrowing the right to the precise context—emergency suspension under a statute authorizing immediate action to protect public safety, after on-the-ground verification—the court found no controlling or consensus authority prohibiting the officials’ course.
3. Role of Elsmere Park: Elsmere does not establish that pre-deprivation hearings are always required or that invoking emergency procedures in such circumstances is unconstitutional. To the contrary, Elsmere approves reliance on emergency procedures where officials have competent evidence of a threat to health and safety, subject to a guardrail against arbitrariness or abuse of discretion and adequate post-deprivation process. Given Berry’s same-day verification of unlicensed guards (including one ineligible due to a criminal record), International Security could not show that Elsmere clearly forbade the officials’ actions.
4. Absence of a Robust Consensus: The plaintiff cited no other authority closely analogous to these facts, and the Third Circuit found none. Without a robust consensus of cases clearly establishing the unlawfulness of the emergency suspension under these circumstances, qualified immunity attaches.
5. Statutory Context and Post-Deprivation Procedure: The officials acted under 24 Del. C. § 1308(a), which expressly authorizes emergency suspension without a pre-deprivation hearing where immediate action is required to protect public safety. The suspension notice advised of the right to a prompt post-deprivation hearing before the Board. These features align with Elsmere’s framework recognizing that, in genuine emergencies supported by competent evidence, post-deprivation process may satisfy due process.
6. Procedural Posture Matters: Echoing Stringer, the panel reiterated that qualified immunity is a “bad fit” at the pleading stage because factual context is thin. Discovery here materially altered the landscape, allowing a more precise definition of the right and, ultimately, a different outcome at summary judgment.

Practical Impact

This decision will likely have several practical effects across regulatory enforcement and civil rights litigation:

• Regulatory Officials and Licensing Bodies: When faced with credible information suggesting public-safety-related licensing violations, officials who promptly verify facts, document their findings, invoke clearly authorized emergency procedures, and provide timely post-deprivation process are well-positioned to obtain qualified immunity in subsequent damages suits.
• Private Licensees (e.g., security firms): Procedural due process challenges to emergency suspensions will require not only showing a deprivation but also overcoming the “clearly established” hurdle with close factual analogues. Emphasizing arbitrariness or abuse of discretion, and building a record that the facts did not amount to an emergency, may be critical. Injunctive or declaratory relief (which qualified immunity does not bar) may be the more viable avenue in real time.
• Litigation Strategy: Berry I versus the post-discovery appeal underscores the importance of discovery in shaping the qualified immunity analysis. Plaintiffs should anticipate that an early denial of qualified immunity can reverse at summary judgment if the factual record narrows the right in ways that lack clear precedent. Defendants should build a contemporaneous record establishing competent evidence of risk and the necessity for immediate action.
• Emergency Powers Doctrine: The opinion reinforces Elsmere’s deference to emergency invocations grounded in competent evidence and suggests that, absent contrary authority closely matching the context, post-deprivation process may suffice. This may embolden agencies to act swiftly where unlicensed actors are implicated in public-safety-sensitive roles.
• Doctrinal Clarification in the Third Circuit: The court’s application of Wesby, Mack, and Stringer signals continued insistence on context-specific framing of rights and reluctance to extrapolate from general due process principles to defeat qualified immunity.

Complex Concepts Simplified

• Qualified Immunity: A defense shielding government officials from personal liability for money damages unless they violated a constitutional or statutory right that was clearly established at the time. Courts may resolve qualified immunity solely on the “clearly established” prong without deciding whether a right was actually violated.
• “Clearly Established” Right: A right is clearly established only if, in the specific context officials faced, every reasonable officer would understand that the conduct was unlawful. This requires close factual similarity or a robust consensus of authority, not abstract statements of law.
• Pre- vs. Post-Deprivation Hearings: Due process usually contemplates notice and an opportunity to be heard before the government deprives a person of property or liberty. However, in emergencies where immediate action is necessary to protect public safety, post-deprivation procedures can satisfy due process if officials have competent evidence and act reasonably (not arbitrarily or abusively).
• Emergency Licensing Suspension: Statutes like 24 Del. C. § 1308(a) permit regulators to suspend licenses without prior hearing when an immediate threat to public health or safety exists, conditioned on the availability of subsequent prompt hearings.
• Collateral Order Doctrine (Interlocutory Appeal): Allows immediate appellate review of certain non-final orders, including denials of qualified immunity, because immunity is immunity from suit, not just liability. The appellate court reviews only whether the facts (viewed in the plaintiff’s favor) amount to a violation of clearly established law.
• Implicit Denial of Qualified Immunity: Even if a district court “reserves” or does not explicitly deny qualified immunity, appellate courts may treat that as a denial if the effect is to force the officials to stand trial, allowing interlocutory review.
• License as Property Interest: Business licenses are often recognized as property interests protected by due process; the dispute here concerns the timing and sufficiency of process in emergencies, not the existence of a property interest.

How the Opinion Uses and Distinguishes Elsmere Park

Elsmere Park involved municipal condemnation of an apartment complex without a pre-deprivation hearing due to mold, leaks, and raw sewage—conditions posing immediate health risks. The Third Circuit there articulated a controlling principle for emergencies: if competent evidence supports an official’s reasonable belief that an emergency exists, invocation of emergency procedures violates due process only if it is arbitrary or an abuse of discretion; post-deprivation procedures may suffice.

International Security attempted to convert Elsmere into a general bar against emergency action without prior hearings absent a demonstrable, immediate crisis. The panel rejected that reading, noting that the plaintiff’s formulation was too abstract and that, in any event, Berry’s same-day on-site verification of multiple legal violations involving unlicensed guards in a public-safety-sensitive industry furnished competent evidence. With no authority holding that temporarily suspending a private security license under these conditions violates due process, Elsmere provided no “fair warning” that the officials’ conduct was unlawful.

Key Takeaways

• Qualified immunity can be resolved at the “clearly established” prong, without reaching whether a constitutional violation occurred.
• The definition of the right must mirror the specific facts officials confronted; generalities will not defeat qualified immunity.
• Discovery matters: allegations that preclude qualified immunity at the pleading stage may be undermined by a fuller record, changing the outcome at summary judgment.
• In emergency licensing contexts, contemporaneous on-site verification and statutory authorization for immediate action weigh heavily in favor of qualified immunity.
• Elsmere Park supports post-deprivation procedures when officials have competent evidence of a public-safety emergency; it does not mandate pre-deprivation hearings in similar contexts.

Unresolved Questions

• Whether the officials’ actions actually violated due process under the first prong (the court expressly did not decide this).
• The boundaries of what constitutes “competent evidence” sufficient to justify emergency suspension in licensing contexts beyond private security.
• How quickly post-deprivation hearings must occur in analogous settings and what procedural safeguards are required to satisfy due process in practice.

Conclusion

International Security LLC v. Berry crystallizes the Third Circuit’s rigorous, fact-specific approach to the “clearly established” prong of qualified immunity, especially in emergency licensing enforcement. With on-site verification of multiple violations implicating public safety and a statutory framework authorizing immediate action with post-deprivation review, the court found no authority clearly forbidding the temporary suspension without a pre-deprivation hearing.

The opinion underscores that discovery can reshape qualified immunity outcomes by refining the right’s contours and that Elsmere Park remains a lodestar for evaluating emergency actions: competent evidence, reasonable judgment, and availability of post-deprivation process will often suffice. Regulatory actors gain a roadmap for defensible emergency action; regulated entities learn that success on procedural due process damages claims in such contexts will require close factual analogues and proof of arbitrariness or abuse. Even as a non-precedential disposition, the case provides substantial guidance on how the Third Circuit calibrates qualified immunity in urgent, public-safety-oriented licensing decisions.