author: DALTON, District Judge:

text:
    Phyllis J. MAY, Plaintiff-Appellant v. CITY OF NAHUNTA, GEORGIA, Darren Crews, Former Chief of Police of the City of Nahunta Police Department, in his individual capacity, Tommy L. Allen, in his individual capacity, Defendants-Appellees.
    No. 15-11749
    United States Court of Appeals, Eleventh Circuit.
    (January 19, 2017)

      Torin D. Togut, Law Office of Torin D. Togut, Lawrenceville, GA, Joseph John Se-guí, Jr., Law Office of Joseph J Segui PC, Waynesville, GA, for Plaintiff-Appellant.
    Richard Strickland, Steven Blackerby, Terry L. Readdick, Brown Readdick Bum-gartner Carter Strickland & Watkins, LLP, Brunswick, GA, for City of Nahunta, Georgia.
    Richard Strickland, Steven Blackerby, Brown Readdick Bumgartner Carter Strickland & Watkins, LLP, Brunswick, GA, for Darren Crews and Tommy L. Allen.
    Before JORDAN and ANDERSON, Circuit Judges, and DALTON, District Judge.

       The Honorable Roy B. Dalton, Jr., United States District Judge for the Middle District of Florida, sitting by designation.

   DALTON, District Judge:

Defendants-Appellees’ Petition for Panel Rehearing filed December 6, 2016, is GRANTED IN PART and DENIED IN PART. The Court VACATES and WITHDRAWS the previous opinion in this case, published on November 15, 2016, at 841 F.3d 1173 (11th Cir. 2016). The Court substitutes the following opinion.

The instant appeal calls on us to determine whether an otherwise authorized mental-health seizure was converted into an unconstitutional one by virtue of the seizing law enforcement officer’s conduct. In particular, Appellant Phyllis J. May (“May”) challenges the district court’s grant of summary judgment in favor of Appellee Tommy L. Allen (“Officer Allen”) on the basis of qualified immunity. After a thorough review of the record and the parties’ briefs, and with the benefit of oral argument, we affirm in part, reverse- in part, and remand this matter to the district court for proceedings consistent with this Opinion.

I

The events preceding the underlying action took place on August 3, 2011. After a taxing few days taking care of her Alzheimer-stricken mother, May fell into a deep sleep. At the time, May was the sole caregiver for her mother, who—in addition to Alzheimer’s disease—suffers from Sun-downer’s Syndrome, a condition that causes her to stay awake for days at a time. (R34-6, pp. 5-6.) Before laying down, May called her brother, Ronnie Jacobs (“Jacobs”) to relieve her. (Id. at 7, 8, 10.) May told Jacobs that her “body [was] going down” and she could “take it no longer.” (Id. at 10.)

Some two or three hours later, Jacobs had still not arrived, despite living in a trailer adjacent to May’s residence. (See R34-7, p. 32.) By that time, May’s mother had grown concerned at the length of time May had been laying down and went to Jacob’s trailer to retrieve him. (Id.) Back at the residence, Jacobs was unable to rouse May and called 911. (See id. at 32-33, 40.) In response, four emergency medical technicians (“EMTs”)—three males and one female—arrived at the house, followed by May’s sister, Wanda Smith (“Smith”). (R34-6, pp. 11, 20-21; R41-2, ¶¶ 3-4.) After checking May’s vital signs, the EMTs placed an ammonia capsule under her nose. (R34-7, pp. 37-38.) The harsh smell woke her up. (R34-6, pp. 11, 13.)

The EMTs asked May a series of questions about her health. (Id. at 14-15.) May told them that she had been diagnosed with caregiver breakdown and Pick’s disease, which she described as cerebral atrophy, or shrinking of the brain, accompanied by symptoms of headaches and seizures. (Id. at 14.) After May declined to go to the hospital, the EMTs determined that she did not require any further medical treatment. (Id. at 15; R41, ¶ 8.) May then executed a form refusing medical .treatment and transport to the hospital, which Smith witnessed. (R41-1, ¶ 11.)

In the interim, Officer Allen received a call from 911 requesting his assistance at May’s residence. (R39, p. 18.) Upon his arrival, an EMT advised him that May had “been a little combative to herself’ and was upset, (Id. at 21.) Another EMT purportedly told Officer Allen that May had been clasping her fists and “scruffing and hitting herself in the head.” (Id. at 25.) Consequently, Officer Allen entered May’s bedroom to investigate. (See id. at 24-26.) There, he observed that her hair was “all over her head in disarray.” (Id. at 49.) Based on the EMTs’ statements, coupled with his own observations, Officer Allen made the decision to seize May in her bedroom and transport her to the hospital for a psychological evaluation.

In conducting the mental-health seizure, Officer Allen asked the EMTs to leave the room and locked the door behind them. (R34-6, pp. 16-17.) Officer Allen then told May that she was going to the hospital and instructed her to take off her nightgown and put on more suitable clothing. (Id. at 17, 18; R39, p. 28.) May began to cry. (R34-6, p. 18.) Despite her urging, Officer Allen refused to leave the room while she changed. (Id. at 72.) Instead, Officer Allen began handing May her clothes and touched her shoulder roughly in an effort to pull off her nightgown. (Id. at 18-19.) After she had put on her shorts, Officer Allen instructed her to take them off and first put on her undergarments. (Id. at 20.) When May refused, Officer Allen replied, “Yes, you will,” and patted his gun. (Id.) Officer Allen remained in the locked room alone with May for fifteen to twenty minutes, all the while ignoring Smith’s requests from the other side that he open the door. (R34-7, p. 44; R34-6, pp. 20-21.)

After the two emerged from the room, Officer Allen announced that he was taking May to the hospital to talk with “someone in crisis.” (R34-6, p. 45; R39, p. 24.) Outside the house, May told Jacobs that she did not want to go to the hospital. (R34-6, pp. 72-73.) Nonetheless, Officer Allen placed May in the back of his police car and took her to Satilla Regional Medical Center in Waycross, Georgia. (Id. at 24; see also R39, p. 44.)

Once they arrived at the hospital, Officer Allen escorted May to the emergency room. (R34-6, pp. 24-25.) Inside, Officer Allen requested a hospital room for May and asked the staff about her prior diagnoses. (Id. at 25.) After hospital staff informed him that May suffered from Pick’s disease and caregiver breakdown, Officer Allen left the hospital. (Id. at 25-26.)

May spent no more than two hours at the hospital before she was dismissed. (R34-7, p. 52.) During this time, she spoke with a nurse from psychiatry and had some blood work performed. (R34-6, p.48.) According to May, another nurse told her that there was nothing wrong with her. (Id. at 26.)

Pursuant to 42 U.S.C. § 1983, May subsequently brought suit in the United States District Court for the Southern District of Georgia against Officer Allen, the City of Nahunta, Georgia, and then-City Chief of Police Darren Crews (“Officer Crews”). (Rl.) May alleged: (1) that Officers Allen and Crews unlawfully seized her in violation of the Fourth and Fourteenth Amendments (Rl, ¶¶ 49-57); (2) that Officer Allen falsely imprisoned her in violation of the Due Process Clause of the Fourteenth Amendment (see id. ¶¶ 58-66); and (3) municipal liability against the City for the actions and inactions of Officers Allen and Crews (id. ¶¶ 32-34, 36-39, 42-46). May also asserted state law claims against Officer Allen for assault and battery, invasion of privacy, and false imprisonment. (Id. ¶¶ 67-89.)

Defendants later moved for summary judgment on grounds of qualified immunity and official immunity. (See R45, pp. 19-20, 38.) Based on its finding that Officer Allen had probable cause to seize May, the district court granted Officer Allen qualified immunity with respect to May’s federal claims. (Id. at 24-25) Additionally, the district court concluded that no clearly established law would have put Officer Allen on notice that his actions were unlawful. (Id. at 25, 31-32.) As to May’s state law claims, the district court held that Officer Allen was entitled to official immunity because May had not met her burden of demonstrating that he acted with actual malice. (Id. at 40-41.) The district court also granted summary judgment in favor of Officer Crews and the City. This appeal followed.

II

We review a district court’s grant of summary judgment based on the defense of qualified immunity de novo. Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir. 2003). “Summary judgment is appropriate only when the evidence before the court demonstrates that ‘there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P. 56(c)).

III

“Qualified immunity protects government actors performing discretionary functions from being sued in their individual capacities.” Holmes, 321 F.3d at 1077. In evaluating a government actor’s entitlement to qualified immunity, the Supreme Court has developed an objective-reasonableness test wherein “the official’s actions must be evaluated against ‘clearly established law,’ consisting of statutory or constitutional rights that a reasonable person should have known.” Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991).

In particular, once we determine that a defendant was acting within his discretionary authority, at the time of the challenged conduct, we engage in a two-prong analysis to evaluate whether he is entitled to qualified immunity. See Roberts v. Spielman, 643 F.3d 899, 904 (11th Cir. 2011). First, we consider whether the facts—viewed in the light most favorable to the plaintiff—establish that a constitutional right has been violated. Id. Second, we determine whether that right was clearly established at the time of alleged conduct. Id. “Both elements of this test must be satisfied for an official to lose qualified immunity, and this two-prong inquiry may be done in whatever order is deemed appropriate for the case.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir. 2010).

A

The parties do not dispute that Officer Allen was acting within the scope of his discretionary authority at the time of the alleged events. Therefore, with respect to May’s unlawful seizure claim, the first issue we must decide is whether Officer Allen is entitled to qualified immunity for his initial decision to seize and then transport May to the hospital.

“The Fourth Amendment protects people from unreasonable searches and seizures.” Roberts, 643 F.3d at 905. “For Fourth Amendment purposes, a seizure occurs when an officer, ‘by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “An encounter between a police officer and a citizen becomes a seizure when ‘a reasonable person would not feel free to terminate the encounter.’ ” Id. (quoting United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011)). In the context of a mental-health seizure, “[w]hen an officer stops an individual to ascertain that person’s mental state (rather than to investigate suspected criminal activity), the Fourth Amendment requires the officer to have probable cause to believe the person is dangerous either to himself or to others.” Id.

There is no question that May was seized during the alleged incident. According to May’s version of the facts, Officer Allen restrained her freedom by confining her to the bedroom and transporting her to the hospital for a psychological evaluation against her will. Thus, we must determine whether such seizure was unreasonable under the Fourth Amendment.

In doing so, “our inquiry is a dual one.” Terry, 392 U.S. at 19-20, 88 S.Ct. 1868. First, we consider “whether the officer’s action was justified at its inception.” Id. at 20, 88 S.Ct. 1868. We then consider whether the seizure “was reasonably related .in scope to the circumstances which justified the interference in the first place.” Id.

Here, we conclude that, at its inception, Officer Allen’s action in seizing May for a psychological evaluation was justified. “[T]o be entitled to qualified immunity from a Fourth Amendment claim, an officer need not have actual probable cause, but only ‘arguable probable cause’”—that is, “the facts and circumstances must be such that the officer reasonably could have believed that probable cause existed.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). Based on the evidence, we hold that Officer Allen had arguable probable cause to seize May for a psychological evaluation.

The facts at hand are similar to those present in Roberts v. Spielman, 643 F.3d 899 (11th Cir. 2011), which was decided about seven weeks before the events at issue here. In Roberts, an officer reported to the plaintiffs home in response to a 911 call concerning a possible suicide attempt. Id. at 902. Upon his arrival, the officer spoke with the plaintiffs former sister-in-law, who informed him that: (1) she had been trying to make contact with the plaintiff for an hour; and (2) the plaintiff had a history of suicide attempts and was on medication for bipolar disorder. Id. After knocking repeatedly to no avail, the officer opened the back door a few inches and identified himself. Id. Roberts became verbally abusive toward the officer and made an ambiguous threat, thereby prompting the officer to escort her out of the house. Id. at 902-03. The officer then explained to Roberts that he had been called to perform a welfare check at her home. Id. at 903. Because Roberts did not threaten her life in his presence, the officer declined to take her into custody for an evaluation and subsequently left. See id.

Based on the foregoing events, the plaintiff brought suit under 42 U.S.C. § 1983, alleging that the officer violated her Fourth Amendment right to be free from unreasonable searches and seizures. Id. at 901. The officer moved for summary judgment on the basis of qualified immunity. The district court ultimately held that the officer was not entitled to qualified immunity because he was acting outside the scope of his discretionary authority. Id.

On appeal, we reversed the district court’s denial of qualified immunity and held that the officer’s conduct did not violate the Fourth Amendment. Id. at 906. Crucial to our analysis were the following facts: (1) that the officer had been dispatched in response to a 911 call; (2) the statements made to the officer by the plaintiffs sister-in-law; and (3) that there was nothing in the record to suggest that the officer should have doubted the information given to him by the plaintiffs relative. Id. Based on these facts, as well as Roberts’ behavior following the officer’s arrival, we held that the officer could have reasonably believed that Roberts posed a danger to herself, thereby justifying his decision to seize her to investigate the relative’s concerns. Id.

As in Roberts, on the day of the incident, Officer Allen reported to May’s home in response to a 911 call requesting police assistance. After he arrived, two EMTs respectively told him that May had been: (1) “a little combative to herself’ and was upset (R.39, p. 21); and (2) clasping her fists and “vigorously ... scruffing and hitting herself in the head” (id. at 25). Officer Allen’s own observations corroborated these statements, as he testified that May’s hair was “all over her head in disarray.” (Id. at 49.) In light of the EMTs’ statements and his respective observations, Officer Allen could reasonably have believed that May posed a danger to herself.

Officer Allen’s decision to transport May to the hospital warrants the same conclusion. Notably absent from the record is any evidence that May’s mother, sister, or brother protested Officer Allen’s announcement that he was taking her to the hospital. Moreover, in view of the chilling effect that a contrary ruling may have in this context, we are reluctant to second guess an officer’s decision on these facts to transport a person to the hospital to evaluate possible mental-health concerns.

B

We similarly conclude that Officer Allen is entitled to qualified immunity on May’s § 1983 false imprisonment claim.

“A § 1983 claim of false imprisonment requires a showing of common law imprisonment and a due process violation under the Fourteenth Amendment.” Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). “The elements of common law false imprisonment are an intent to confine, an act resulting in confinement, and the victim’s awareness of confinement.” Id. A plaintiff must also prove that the defendant acted with deliberate indifference in violating the plaintiffs right to be free from continued detention after the defendant knew or should have known that the detainee was entitled to release. Id.

At oral argument, May confirmed that her false imprisonment claim, like her unlawful seizure claim, was based on her detention by Officer Allen in her bedroom through the time that she was taken to the hospital. In light of our finding that Officer Allen had arguable probable cause to seize May and transport her to the hospital, we find that May has not shown that Officer Allen acted with deliberate indifference by knowingly or recklessly violating her right to be free from continued detention after she was entitled to release. Thus, we affirm the district court’s grant of summary judgment in favor of Officer Allen on May’s § 1983 false imprisonment claim.

C

Having determined that Officer Allen is entitled to qualified immunity on the issue of whether the seizure was justified at its inception, we now address whether the manner of the seizure was unreasonable. Because we determine that questions of fact exist with respect to whether the seizure was conducted in an extraordinary manner, unusually harmful to May’s privacy interests, Whren v. United States, 517 U.S. 806, 818, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), we conclude that the district court erred in granting Officer Allen qualified immunity for his conduct during the seizure.

1

Under the Fourth Amendment, an individual is entitled to be free from unreasonable government intrusion wherever he harbors a reasonable expectation of privacy. Terry, 392 U.S. at 9, 88 S.Ct. 1868. The legality—and, thus, reasonableness—of an officer’s conduct is often judged “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate, governmental interests.” Bouye v. Marshall, 102 F.Supp.2d 1357, 1362-63 (N.D.Ga. 2000) (citing Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)), aff'd sub nom., Bouye v. Gwinnett Cty., 265 F.3d 1063 (11th Cir. 2001).

However, where adequate justification for the initiation of the seizure has been found, courts limit their application of the balancing analysis to “searches or seizures conducted in an extraordinary manner”—that is, searches and seizures conducted in a manner “unusually harmful to an individual’s privacy or even physical interests.” Whren, 517 U.S. at 818, 116 5.Ct. 1769. Inter alia, these “extraordinary manner” cases may involve seizure by means of a deadly weapon. Id.

“Whether a search or seizure is ‘extraordinary’ turns, above all else, on the manner in which it is executed.” Atwater v. City of Lago Vista, 532 U.S. 318, 322, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Given that “[t]he Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation,” the manner in which a seizure is conducted is “as vital a part of the inquiry as whether [it was] warranted at all.” Terry, 392 U.S. at 28-29, 88 S.Ct. 1868. At bottom, a government actor must employ reasonable means. See Evans v. Stephens, 407 F.3d 1272, 1281 (11th Cir. 2005).

Thus, an initially constitutional seizure can become unconstitutional where it is executed in an extraordinary manner, thereby subjecting the officer’s conduct to a balancing analysis. While usually evaluated in the context of excessive force, that is not the only way that an otherwise authorized seizure might be conducted in such an extraordinary manner so as to constitute a constitutional violation. Applying the foregoing analysis here, the question we must answer is whether—considering the totality of the circumstances—an objectively reasonable officer would have known that May’s right to personal security was unreasonably violated by Officer Allen’s actions following the initial seizure. See Terry, 392 U.S. at 9, 88 S.Ct. 1868.

Officer Allen arrived at May’s home to assist EMTs in responding to a 911 call. Based on the EMTs’ statements to Officer Allen, the government interest was the promotion of safety, the elimination of self-harm, and the investigation of mental-health concerns. Balancing the government interest against May’s interest in bodily sanctity and personal security, we conclude that Officer Allen’s actions exceeded the scope of the underlying justification and that he failed to use reasonable means to rectify the situation. Thus, while Officer Allen had at least arguable probable cause to seize and transport May to the hospital for evaluation, the manner in which he chose to do so was unreasonable, thereby violating May’s Fourth Amendment rights.

In concluding that Officer Allen’s actions were objectively reasonable under the circumstances, the district court evidently placed little emphasis on the allegedly egregious manner in which the seizure was performed. Though admitting that Officer Allen’s conduct may have been “indelicate,” the district court focused almost solely on whether Officer Allen had probable cause to seize May in the first place. (R 45, p. 41.) Such was error.

Specifically, on May’s version of the facts, Officer Allen detained May in a locked room for twenty minutes and forced her to disrobe. Officer Allen’s purported rationale was to: (1) get May to change out of her nightgown and put on more appropriate clothing for transport to the hospital; and (2) ensure that May did not harm herself in the interim. Notwithstanding these objectives, it was clearly inappropriate for a male officer to lock himself in a room with a woman in a state of undress under the circumstances, particularly after she asked him to leave. The unreasonableness of such conduct is further underscored by his failure to summon the female EMT or any of May’s female relatives present at the residence. As intimated at oral argument, one could certainly conclude that it was unreasonable for Officer Allen not to ask the female EMT to remain with May while she disrobed. Even more troubling is the testimony that Officer Allen attempted to pull May’s nightgown from her shoulder and used the threat of deadly force to compel her to remove her shorts, in order to first put on undergarments, by patting his gun after she initially refused. Based on the totality of these facts, one could conclude that the manner in which Officer Allen conducted the seizure violated May’s Fourth Amendment right. Moreover, not only could Officer Alen’s patent disregard for May’s personal dignity be deemed unreasonable, but so could the prolonged duration of the seizure. Thus, we conclude that factual questions remain with respect to whether Officer Allen’s conduct violated May’s constitutional right to personal security.

2

Our final inquiry concerns whether, under the circumstances, May’s right to be free from a seizure in which she was compelled—by threat of deadly force—to disrobe in front of a male police officer, with whom she remained alone in a locked room for twenty minutes, was clearly established on August 3, 2011. We conclude that it was.

“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir.2002). “Our circuit uses two methods to determine whether a reasonable officer would know that his conduct is unconstitutional.” Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011). “The first method looks at the relevant case law at the time of the violation; the right is clearly established if ‘a concrete factual context exists so as to make it obvious to a reasonable government actor that his actions violate federal law.’ ” Id. at 1291 (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1333 (11th Cir. 2008)).

“The second method looks not at case law, but at the officer’s conduct, and inquires whether that conduct ‘lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the officer, notwithstanding the lack of fact-specific case law.”’ Id. (quoting Vinyard, 311 F.3d at 1355). “In such circumstances, the violation is obvious.” Evans, 407 F.3d at 1282.

Applying the obvious clarity test to May’s version of the facts, we hold that an objectively reasonable officer would have known to refrain from engaging in degrading and humiliating methods when preparing to transport a person of the opposite gender for a psychological evaluation. Given our prior holding that searches performed in an “abusive fashion” may violate the Constitution, Evans, 407 F.3d at 1281, an objectively reasonable officer would have known that, under the circumstances, it was unreasonable to use the threat of deadly force to compel a female civilian to disrobe in that manner. Indeed, if established, Officer Allen’s conduct is representative of the type of unnecessarily invasive and demeaning intrusion that is undoubtedly within the sphere of what the Fourth Amendment prohibits.

Quite simply, the Fourth Amendment ensures a person’s right “to be secure in their persons [and] houses” against unreasonable seizures. U.S. Const, amend. IV. As such, any objectively reasonable officer would have known that the “degrading and forceful manner” in which Officer Allen conducted this seizure was patently unreasonable. Evans, 407 F.3d at 1283; see also Hope, 536 U.S. at 745, 122 S.Ct. 2508 (finding that the defendants violated clearly established law under the obvious clarity test where the plaintiff “was treated in a way antithetical to human dignity” by being “hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous”).

In Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005), we found that strip searches performed during a post-arrest criminal investigation were unreasonable at both their inception and with regard to the manner in which they were performed. Id. at 1278. In applying the obvious clarity test, we took issue with the following circumstances: (1) that the plaintiffs were searched in an abnormal place—a broom closet—“thus, capable of exciting more fear”; (2) that “[l]ittle respect for privacy was observed”; (3) that the officers used unnecessary force; and (4) that the officers used threatening language toward the plaintiffs. Id at 1281-82.

Given Officer Allen’s alleged disregard for May’s privacy, his use of forcible language coupled with the threat of deadly force, the prolonged duration of the seizure, and the inappropriateness inherent in the circumstances, we similarly conclude that “the supposed facts of this case take the manner of [seizure] well beyond the ‘hazy border’ that sometimes separates lawful conduct from unlawful conduct.” Id. at 1283 (quoting Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000)). Here, as in Evans, the violation was obvious. As such, qualified immunity was inappropriate, and the district court erred by granting summary judgment in favor of Officer Allen on that ground.

IV

At oral argument we posited the following hypothetical to the parties. An officer initiates a traffic stop. Although the officer had probable cause for the initial stop, during the course of the traffic stop, he requests that the driver disrobe. When the driver refuses, the officer pats his gun, and the driver then complies. Subsequently, the officer tells the driver to put her clothes back on and lets her go. When asked whether the foregoing conduct would unreasonably violate the driver’s privacy, counsel for the Appellees conceded that it would. We see no reason to treat the present circumstances differently.

In sum, we hold that Officer Allen is protected by qualified immunity from May’s challenge to his decision to seize and transport her to the hospital, but he is not entitled to qualified immunity from May’s claims challenging the manner of such seizure. Accordingly, we affirm the district court’s grant of qualified immunity with respect to the initial seizure. However, we reverse and remand on the question of whether Officer Allen’s conduct during the seizure was done in an extraordinary manner unusually harmful to May’s privacy interests.

Affirmed in Part, Reversed in Part, and Remanded.

      . Appellant does not challenge the district court's grant of summary judgment in favor of the remaining Appellees.

      . The following facts are taken from the evidence submitted by the parties. Where the evidence conflicts, the facts are construed in the light most favorable to May, the non-moving party. See Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006).

      . Officer Allen largely disputes May’s version of events. For example, though he admits that he and May were alone in her room with the door closed, he denies that he locked the door and contends that he only remained in the room with her for five or six minutes. (R39, pp. 26, 31-32, 35-36). He also denies that May disrobed in front of him or that she was naked. (Id. at 31-32.) However, Officer Allen did concede that May inadvertently exposed her left breast in his presence as she was putting on her t-shirt, (Id. at 29, 37-38.)

      . May’s claims against Officer Crews appear to be based on vicarious liability for Officer Allen’s conduct.

      . We will address whether Officer Allen is entitled to qualified immunity with respect to the manner of such seizure in Part C of this Opinion.

      . The question of reasonableness may sometimes turn on whether less intrusive means were practically available to accomplish the objective of the seizure, as in the context of an unduly intrusive search or an extended detention. See, e.g., Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306 (11th Cir. 2006) (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). For example, a lawful seizure "can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); see also Muehler v. Mena, 544 U.S. 93, 100, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (stating that the duration of a detention can also affect the balance of interests).

      . According to the deposition testimony of Officer Crews, the City did not have any female police officers at the time. (R38, p. 35.)

      . Even the testimony of Officer Crews supports May’s position, as Officer Crews implied that Officer Allen should not have laid his hands on her. (See R38, pp. 37.)

      . After review of the record, we find no reason to disturb the district court’s ruling on the issue of official immunity for May’s state law claims.


source: Caselaw Access Project

author: WILLIAM PRYOR, Circuit Judge:

license: Public Domain

text:
    CSX TRANSPORTATION, INC., Plaintiff-Appellant, v. GENERAL MILLS, INC., Defendant-Appellee. CSX Transportation, Inc., Plaintiff-Appellant, v. General Mills, Inc., Defendant-Appellee.
    No. 15-12095, No. 15-14399
    United States Court of Appeals, Eleventh Circuit.
    (January 30, 2017)

      Evan Mark Tager, Brian David Netter, Mayer Brown, LLP, Washington, DC, R. Stan Baker, Christopher Randall Jordan, Randall Athley Jordan, Karen Jenkins Young, The Jordan Firm, St Simons Is, GA, Grant Cox Buckley, Jordan & Moses, St Simons Is, GA, Eileen Margaret Crowley, Hall Bloch Garland <& Meyer, LLP, Atlanta, GA, Ana Davis Johnson, David M. Wells, Gunster Yoakley & Stewart, PA, Jacksonville, FL, for Plaintiff-Appellant.

      Jerry W. Blackwell, Emily A. Ambrose, Mary S. Young, Blackwell Burke, PA, Minneapolis, MN, Catherine Ann McCormack, Albert H. Parnell, Hawkins Parnell Thack-ston & Young, LLP, Atlanta, GA, for Defendant-Appellee.
    Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and MARTINEZ, District Judge.

       Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

Our caselaw contains discordant answers to the question whether federal common law borrows the doctrine of collateral es-toppel as defined by state law, Palmer & Cay, Inc. v. Marsh & McLennan Cos., 404 F.3d 1297, 1310 (11th Cir. 2005), or applies the doctrine only as defined by federal law, Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 1171, 1179 (11th Cir. 2013), to determine the preclusive effect of an earlier judgment of a federal court that exercised diversity jurisdiction. This appeal requires that we resolve that discord. In an earlier action before a federal court that exercised diversity jurisdiction, a jury found CSX Transportation solely liable for injuries suffered by an employee of General Mills and awarded the employee damages, CSX filed this action for indemnification from General Mills. The district court dismissed this action on the ground that a contract between the parties barred indemnification for damages “arising from [CSX’s] ... sole negligence.” To reach this result, the district court applied a federal rule of collateral estoppel to bar relitigation of the relative fault of General Mills for the injury suffered by its employee. We reverse and remand because federal common law adopts the state rule of collateral estoppel to determine the preclusive effect of a judgment of a federal court that exercised diversity jurisdiction.

I. BACKGROUND

In 1989, CSX Transportation and General Mills entered into a Sidetrack Agreement for the construction, use, and maintenance of a sidetrack railway line. The sidetrack subject to the agreement is a “spur track”; it provides railway access from a rail line operated by CSX to a processing facility owned by General Mills. The Sidetrack Agreement grants General Mills the right to conduct “switching” on the sidetrack. Switching is “the process of moving railcars that have been previously delivered by a train ... in the proper order so that they can be coupled to a locomotive and pulled out of a customer’s facility.” To conduct switching, General Mills acquired a trackmobile, a “mobile railcar mover, capable of traveling on both roads and railroad tracks, fitted with couplers for moving small numbers of railcars.”

Section 15 of the Sidetrack Agreement contains a specific liability provision for switching. In consideration for the use of the sidetrack, General Mills assumed “all risk of loss, damage, cost, liability, judgment and expense ... in connection with any personal injury to or death of any persons, or loss of or damage to any property, ... that may be sustained or incurred in connection with, ... the operation of [General Mills’s] trackmobile or locomotive power.” The Sidetrack Agreement also contains a general liability provision, Section 11, that relieves General Mills of liability “for all losses arising from [CSX’s] ... sole negligence.”

On June 5, 2005, two employees of General Mills, Doug Burchfield and Rodney Turk, were switching railcars on the sidetrack. Turk moved a railcar to a holding track with the trackmobile. The railcar, which Turk did not properly secure, rolled down the track, collided with two other railcars, and hit Burchfield who suffered serious injuries.

Burchfield filed a complaint against CSX for his injuries and invoked the diversity jurisdiction of the district court. Burchfield v. CSX Transp., Inc., No. 107-CV-1268, 2009 WL 1405144, at *9 n.l (N.D. Ga. May 15, 2009). Before trial, the district court granted Burchfield’s motion for a partial summary judgment against the defense of CSX that General Mills was at fault for the accident. CSX prevailed at trial, but on appeal we reversed on evidentiary grounds and remanded. Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1338 (11th Cir. 2011). At the retrial, a jury found CSX solely at fault and awarded Burchfield more than $20 million in damages. The parties later settled the claim for $16 million.

CSX then requested indemnification from General Mills. General Mills denied the request, and CSX filed this suit. The complaint alleged that the Sidetrack Agreement requires General Mills to indemnify CSX. General Mills moved to dismiss the complaint on the ground that the Sidetrack Agreement does not require indemnification because the jury found CSX solely at fault for Burchfield’s injuries and collateral estoppel prohibits relitigation of the fault of General Mills. The district court dismissed the complaint.

CSX filed a motion for reconsideration or, in the alternative, leave to file an amended complaint, in which it argued that the district court erred because it applied collateral estoppel as defined by federal law, not state law. According to CSX, had the district court applied collateral estoppel as defined by the law of Georgia, CSX would have been permitted to relitigate the relative fault of General Mills. Unlike the federal rule of collateral estoppel, collateral estoppel as defined by Georgia law requires the earlier judgment to have been rendered in litigation between identical parties or their privies. Compare Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), with ALR Oglethorpe, LLC v. Henderson, 336 Ga.App. 739, 783 S.E.2d 187, 192 (2016). The district court initially granted the motion to file an amended complaint, but on reconsideration later denied it.

II. STANDARDS OF REVIEW

“We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the complaint’s allegations as trae and construing them in the light most favorable to the plaintiff.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (quoting Cinotto v. Delta Air Lines Inc., 674 F.3d 1285, 1291 (11th Cir. 2012)). We review whether the doctrine of collateral estoppel is available de novo. Dailide v. U.S. Att’y Gen., 387 F.3d 1335, 1341 (11th Cir. 2004).

III. DISCUSSION

Before we address the merits, we must first determine whether CSX preserved this issue for appeal. “A federal appellate court will not, as a general rale, consider an issue that is raised for the first time on appeal.” In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight Program Litig., 905 F.2d 1457, 1461-62 (11th Cir. 1990). “[I]f a party hopes to preserve a[n] ... argument, ... [it] must first clearly present it to the district court ... in such a way as to afford the district court an opportunity to recognize and rule on it.” Id. at 1462.

CSX argues, and we agree, that it preserved its argument that federal common law adopts the state rule of collateral estoppel to determine the preclusive effect of an earlier judgment of a federal court that exercised diversity jurisdiction. In footnote four of the brief CSX filed in response to the motion to dismiss of General Mills, CSX argued that our precedent bound the district court to apply collateral estoppel as defined by federal law, but that this precedent was wrong because state law should apply. Although CSX went on to argue in the same brief that collateral estoppel as defined by federal law did not bar relitigation of the negligence of General Mills, the footnote presented a full argument. It cited relevant authority and reasoned by syllogism. That the argument appeared in a footnote does not affect our conclusion. Cf. United States Sec. Exch. Comnn’n v. Big Apple Consulting USA, Inc., 783 F.3d 786, 812 (11th Cir. 2015) (“The defendants’ fleeting footnote explaining in one sentence that such evidence ‘could be relevant’ is insufficient to properly assert a claim on appeal.”). And in any event, the appropriate federal common law rule of collateral estoppel is a “pure question of law” that we “will consider” for the first time on appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004) (quoting Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001)).

Whether federal common law borrows the state rule of collateral estoppel to determine the preclusive effect of a judgment rendered by a court that exercised diversity jurisdiction is unclear under our case-law. Compare CSX Transportation, Inc. v. Brotherhood of Maintenance of Way Employees, 327 F.3d 1309, 1316 (11th Cir. 2003) (“We now hold that federal preclusion principles apply to prior federal decisions, whether previously decided in diversity or federal question jurisdiction.”), and Tampa Bay Water, 731 F.3d at 1180 (applying “federal collateral estoppel law to determine the preclusive effect” of a summary judgment granted by a district court sitting in diversity jurisdiction (emphasis added)), with SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 764 F.3d 1327, 1336 (11th Cir. 2014) (“Under Semtek, federal common law generally incorporates state law to determine the preclusive effect of a federal diversity judgment.”), and Palmer & Cay, 404 F.3d at 1309-10 (applying the state law of collateral estoppel to determine the preclusive effect of a declaratory judgment rendered by a federal court sitting in diversity jurisdiction). Because we must not “speak[ ] from both sides of [our] mouth,” Bryan A. Garner, et al., The Law of Judicial Precedent 300 (2016), we must resolve this uncertainty and determine which of our precedents binds us.

Some of the confusion in our caselaw is explained on the ground that the answer to the question before us is, as stated, one of federal common law. Palmer & Cay, 404 F.3d at 1310 (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 509, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)). That is, regardless of whether we incorporate collateral estoppel as defined by state law or apply a federal rule, we apply federal common law. Cf. Semtek, 531 U.S. at 508, 121 S.Ct. 1021. That federal common law determines the preclusive effect of an earlier judgment against a party, even if federal common law borrows the state rule, has likely caused confusion in our decisions. Our decisions, for example, contain imprecise statements such as “federal preclusion principles apply,” Brotherhood, 327 F.3d at 1316; see also Tampa Bay Water, 731 F.3d at 1179.

In Semtek International Lie. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001), the Supreme Court addressed the related question, whether federal common law adopts the state rule of res judicata to determine the preclusive effect of an earlier judgment of a federal court that exercised diversity jurisdiction. Id. at 499, 121 S.Ct. 1021. The Supreme Court applied federal common law and held that the “claim-preclusive effect” of the judgment of a federal court that exercised diversity jurisdiction is determined by “the law that would be applied by state courts in the State in which the federal diversity court sits.” Id. at 508, 121 S.Ct. 1021 (citations omitted). The Supreme Court explained that “[tjhis is ... a classic case for adopting, as the federally prescribed rule of decision,” state law, because “state, rather than federal, substantive law is at issue ... [a]nd indeed, nationwide uniformity in the substance of the matter is better served by having the same claim-preclusive rule (the state rule) apply whether the dismissal has been ordered by a state or a federal court.” Id. (citations omitted).

If we were deciding the question presented for the first time in our Circuit, the reasoning of Semtek would likely compel our conclusion. The doctrines of collateral estoppel and res judicata are insufficiently distinct to warrant different treatment under the rationale of Semtek. But we do not address this question in the first instance, and the holding of Semtek does not reach the precise question before us—the appropriate rule of collateral estoppel or issue preclusion.

Our precedents after Semtek contain contradictory and confusing answers to the question presented so we apply two principles to parse our jumbled caselaw. First, we distinguish between the holding and dicta of a decision. “The holding of an appellate court constitutes the precedent, as a point necessarily decided. Dicta do not: they are merely remarks made in the course of a decision but not essential to the reasoning behind that decision.” Garner, et al., supra at 44 (emphasis omitted); accord United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009). Second, we are bound to follow an earlier holding “unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). But, “[w]hen we have conflicting [precedents], we follow our oldest precedent.” United States v. Madden, 733 F.3d 1314, 1319 (11th Cir. 2013) (citation omitted); see also Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998) (adopting the “earliest case rule” for intracircuit splits); accord Garner, et al, supra, at 303 (“With an intermediate appellate court, an earlier horizontal precedent nearly always rules.”).

Our first precedent after Semtek to mention the question presented is Brotherhood of Maintenance of Way Employees, 327 F.3d 1309. General Mills relies on the following statement in that decision: “We now hold that federal preclusion principles apply to prior federal decisions, whether previously decided in diversity or federal question jurisdiction.” Id. at 1316 (citing Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 393 n.6 (5th Cir. 1998) (“[F]ederal law of issue preclusion applied because the prior decision had been issued by a federal court, albeit in a diversity action.”)). At first blush, our statement appears to support the position of General Mills that federal common law incorporates collateral estoppel as defined by federal law to bar relitigation of the issue in this appeal, whether General Mills caused Burchfield’s injuries. Notably, when we made this statement, we did not mention Semtek, which the Supreme Court had decided only two years before we decided Brotherhood.

Even if we assume that Brotherhood stated a rule about collateral estoppel and an earlier federal judgment where the court exercised diversity jurisdiction, that rule has no precedential effect because it was not part of our holding. That is, the rule does not bind us. The question in Brotherhood was the preclusive effect of “a federal question previously decided by a federal court,” not a question of state law decided by a federal court that exercised diversity jurisdiction. Id. Whether federal common law incorporates collateral estop-pel as defined by state or federal law to apply to earlier judgments of federal courts that exercised diversity jurisdiction was unnecessary “as a justification for the decision reached.” Garner, et al, supra, at 46.

In contrast with the dicta from Brotherhood, a later decision, Palmer & Cay, 404 F.3d 1297, squarely presented the issue whether federal common law incorporates collateral estoppel as defined by state law to determine the preclusive effect of an issue previously decided by a federal court that exercised diversity jurisdiction. Id. at 1310. Palmer & Cay required us to determine whether a district court that exercised diversity jurisdiction erred when it limited the preclusive effect of a declaratory judgment to the State of Georgia. Id. at 1309. We rejected the geographic limitation imposed by the district court. Without any mention of the dicta from Brotherhood, we based our decision on Semtek and concluded that a court asked to enforce the declaratory judgment must apply federal common law, which in turn borrows the state rule where the district court exercised diversity jurisdiction, and the district court failed to follow this approach. Id. at 1310 (citing Semtek, 531 U.S. at 509, 121 S.Ct. 1021). Unlike the rule announced in Brotherhood, our conclusion that federal common law incorporates collateral estop-pel as defined by state law was part of our holding in Palmer & Cay. It was a “ruling on a point of law” that was necessary to our decision. Garner, et al., supra, at 46.

To complicate matters further, in Tampa Bay Water, which we decided after Palmer & Cay, we held the opposite. We cited Brotherhood for the proposition that federal common law incorporates collateral estoppel as defined by federal law to determine the preclusive effect of issues decided by a federal court that exercised diversity jurisdiction, and we applied that rule. Tampa Bay Water, 731 F.3d at 1179-80 (citing Brotherhood, 327 F.3d at 1316). Our application of the rule announced in Brotherhood was part of our holding in Tampa Bay Water because we applied collateral estoppel as defined by federal law to the earlier judgment of a federal court that exercised diversity jurisdiction. Id. at 1180-81. But in Tampa Bay Water, we did not discuss Semtek, nor did we mention our precedent in Palmer & Cay. And we did not discuss the possibility that federal common law could borrow the state rule of collateral estoppel to determine the preclu-sive effect of an earlier federal judgment when the district court exercised diversity jurisdiction.

In sum, our caselaw contains two lines of divergent precedent, neither of which acknowledges the other. One of those lines of precedent, Brotherhood and Tampa Bay, fails to mention Semtek, a Supreme Court precedent, and instead sows confusing dicta into our analysis. Brotherhood, 327 F.3d at 1316 (‘We now hold that federal preclusion principles apply to prior federal decisions ... previously decided in diversity ... jurisdiction.”). But, precisely because that confusing statement was dicta, the true conflict in our precedent is between Palmer & Cay and Tampa Bay Water, Palmer & Cay holds that federal common law borrows the state rule of collateral estoppel to determine the preclusive effect of issues decided by a federal court that exercised diversity jurisdiction, 404 F.3d at 1310, and Tampa Bay Water holds the opposite—that federal common law applies the federal rule to resolve the same question, 731 F.3d at 1180.

Under the earliest precedent rule, see Madden, 733 F.3d at 1319, Palmer & Cay binds us in this and future appeals because we decided it before we decided Tampa Bay Water. And we cannot reconcile our holdings in Palmer & Cay and Tampa Bay Water, which “[i]f at all possible” we should do, see Garner, et al, supra, at 300, because they announced incompatible rules. We hold that federal common law borrows the state rule of collateral estoppel to determine the preclu-sive effect of a federal judgment where the court exercised diversity jurisdiction.

The parties dispute one element of collateral estoppel as defined by Georgia law: that the earlier litigation must have been between identical parties. Unlike the federal rule of collateral estoppel, which allows non-parties to the previous action to assert the doctrine offensively or defensively, Parklane, 439 U.S. at 327, 99 S.Ct. 645, Collins v. Seaboard Coastline R.R. Co., 681 F.2d 1333, 1334 (11th Cir. 1982), a party who asserts collateral estoppel as defined by Georgia law must prove that the issue decided in earlier litigation was “between identical parties,” Cmty. State Bank v. Strong, 651 F.3d 1241, 1264 (11th Cir. 2011). The identity requirement includes parties and their privies, Oglethorpe, 783 S.E.2d at 192. General Mills argues that it was in privity with Burch-field in the underlying litigation, which necessarily defeats the claim for indemnification. CSX counters that Burchfield and General Mills did not have the same interest in the underlying litigation and were not privies.

We decline to decide this dispute. Whether parties were in privity is a factual question that should be decided in the first instance by the district court. See Salve Regina Coll. v. Russell, 499 U.S. 225, 233, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (explaining that the “institutional advantage[]” of a district court is its “unchallenged superiority ... [in] factfinding”); Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1472 (11th Cir.1986) (“[P]rivity ... is a factual question which should not be reversed unless its determination is clearly erroneous.”). We remand for the district court to determine whether collateral estoppel bars the complaint of CSX for indemnification.

We also decline to decide the alternative argument raised by CSX, whether the Sidetrack Agreement requires indemnification assuming CSX was solely at fault. The district court, as CSX argues, construed the Sidetrack Agreement under the premise that collateral estoppel as defined by federal law precludes relitigation of the negligence of General Mills. The district court should have the first opportunity to decide the predicate question of privity, so we do not resolve this alternative argument.

IV. CONCLUSION

We REVERSE and REMAND for proceedings consistent with this opinion.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Douglas SCHEELS, Defendant-Appellant.
    No. 15-15405
    Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    (January 31, 2017)
    Peter J. Sholl, Arthur Lee Bentley, III, Anita M. Cream, U.S. Attorney’s Office, Tampa, FL, Nicole M. Andrejko, J. Bishop Ravenel, U.S. Attorney’s Office, Orlando, FL, for Plaintiff-Appellee.
    Adeel Bashir, Mara Allison Guagliardo, Federal Public Defender’s Office, Tampa, FL, James T. Skuthan, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender’s Office, Orlando, FL, for Defendant-Appellant.
    Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit Judges.
   PER CURIAM:

Douglas Scheels pleaded guilty to one count of production of child pornography and one count of receipt of child pornography. The district court sentenced him to a total of 600 months in prison. Scheels contends that the district court erred in calculating his guideline range by imposing a four-level enhancement under § 2G2.1(b)(4) of the United States Sentencing Guidelines.

“We review the district court’s legal interpretations of the Sentencing Guidelines under a de novo standard of review....” United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010). Section 2G2.1(b)(4) requires the imposition of a four-level enhancement where a defendant’s “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” Scheels does not argue that the pornography he produced does not depict “sadistic or masochistic conduct.” Indeed, he admits that it contains, among other things, images involving whipping and bondage. But Scheels argues that, notwithstanding that content, the § 2G2.1(b)(4) enhancement should not apply to him, because the “sadistic or masochistic conduct” in his pornography was directed at him, not the child victim. We disagree.

The plain language of § 2G2.1(b)(4) requires only that an offense “involve[ ] ... sadistic or masochistic conduct,” not that that conduct be directed at the victim. U.S.S.G. § 2G2.1(b)(4) (emphasis added). “The language of the Sentencing Guidelines, like the language of a statute, must be given its plain and ordinary' meaning— ” United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011) (quotation marks omitted) (citation omitted). The ordinary meaning of “involve,” when used as a verb, is “[t]o have as a necessary feature or consequence; entail,” Involve, The American Heritage Dictionary of the English Language (5th ed. 2016), or “to have within or as a part of itself,” Involve, Merriam-Webster’s Collegiate Dictionary (11th ed. 2009). Moreover, under the guidelines, a defendant’s “offense” includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant.... ” U.S.S.G. §§ 1B1.1 cmt. n.l(H), lB1.3(a)(l)(A) (emphasis added). Here, a part of the production offense to which Scheels pleaded guilty was inducing or commanding a minor to participate in sadistic or masochistic conduct during the course of sexual activity. As a result, his offense “involved” such conduct, regardless of whether the conduct was directed at him or the minor victim.

While acknowledging that there are no cases directly on point, Scheels argues that our past decisions and the decisions of our sister circuits cast doubt on our interpretation of § 2G2.1(b)(4). He cites a number of cases, like United States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002) (quotation marks omitted), which contain statements like: “[A] photograph is sadistic within the meaning of Section 2G2.2(b)(3) when it depicts the subjection of a young child to a sexual act that would have to be painful.” But those cases merely stand for the proposition that material depicting sadistic or masochistic conduct directed towards the child is sufficient to warrant the application of a § 2G2.1(b)(4) enhancement, not that it is necessary. Indeed, because the cases Scheels cites concerned material that contained sadistic or masochistic conduct directed at a minor, any statement by those courts suggesting that the images would not have justified applying the enhancement if they had shown the minor participating in sadistic or masochistic conduct directed towards the defendant is merely dicta. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010) (“Statements in an opinion that are not fitted to the facts, or that extend further than the facts of that case, or that are not necessary to the decision of an appeal given the facts and circumstances of the case are dicta. We are not required to follow dicta in our prior decisions. Nor for that matter is anyone else,”) (quotation marks and citations omitted). Given a choice between what is, at best, dicta from this and other circuits and the obvious meaning of the plain text of the guidelines, we choose the guidelines.

The district court did not err by applying a four-level enhancement under § 2G2.1(b)(4) when calculating Scheels’ guideline range.

AFFIRMED.

      .Based on the last presentence report prepared in this case, it appears that Scheels was sentenced based on the 2014 version of tire guidelines even though, by the time Scheels was sentenced, the 2015 version of the guidelines had become effective. But that has no impact on this appeal because there was no change to § 2G2.1(b)(4) of the guidelines between the 2014 and 2015 versions of the guidelines and Scheels does not challenge any other aspects of the district court’s guidelines calculation. That said, when we cite to the guidelines in this opinion, we are referring to the 2015 version.

      . As directed by U.S.S.G. § 3D1.4, Scheels’ total offense level was calculated based on the production offense because—of the charges to which Scheels pleaded guilty—it had the highest offense level.

      . Although Hall concerned § 2G2.2(b)(3), which was subsequently renumbered § 202.2(b)(4), not § 2G2.1(b)(4), the language of the provisions is identical. Compare U.S.S.G. § 2G2.1(b)(4) (2015), whh id. § 2G2.2(b)(4) (2015) and U.S.S.G. § 2G2.2(b)(3) (2001).

      . Because the application of § 2G2.1(b)(4) to this case is fully supported by the facts in the record, we need not address the effect of a stipulation in Scheels’ plea agreement that the enhancement was supported by the undisputed facts.